Neutral Citation No. - 2025:AHC-LKO:23306 Court No. - 5 Case :- FIRST APPEAL No. - 77 of 2025 Appellant :- Ishwari Kumar Dwivedi Respondent :- Smt. Nidhi Mishra @ Nidhi Pandey Counsel for Appellant :- Pawan Kumar Misra,Alina Masoodi,Wali Nawaz Khan Counsel for Respondent :- Sudhakar Mishra,Haridwar Singh (H.D.Singh ) Hon'ble Abdul Moin,J. 1. Heard Shri Wali Nawaz Khan, learned counsel for the appellant and Shri Jai Prakash Yadav as well as Shri Vivek Kumar Tripahti, learned counsel for the respondent. 2. With the consent of the parties, the matter is being decided finally. 3. By means of the instant appeal filed under Section 96 of the Code of Civil Procedure, 1908, the appellant seeks to challenge the order dated 27.01.2025 passed by the learned Civil Judge (Senior Division), Malihabad, Lucknow in Application No.B-9 under Order VII Rule 11 read with Section 151 C.P.C. in Misc Case No.72 of 2022 In Re Ishwari Kumar Dwivedi vs Smt Nidhi Mishra @ Nidhi Pandey whereby the application filed by the respondents herein under Order 7 Rule 11 in the suit that had been filed by the appellants has been allowed. 4. Contention of the learned counsel for the appellant is that the appellant had filed a suit for permanent injunction and specific performance on 12.11.2021. The respondent herein was also impleaded as respondents in the said suit. 5. The respondents herein filed an application under Order 7 Rule 11. Same has been allowed by the learned Trial court vide the impugned order dated 27.01.2025 after discussing the facts of the case but thereafter contending that as the plaintiff-appellant has failed to deposit the court fee consequently the suit cannot proceed and as such the application under Order 7 Rule 11 has been allowed and the suit has been dismissed. 6. The argument of the learned counsel for the appellant is that he had filed an application seeking further time for depositing the court fee vide his application dated 25.01.2022, a copy of which is Annexure-2 to the application for interim relief. It is argued that it is always open for the trial court to have allowed the application under order 7 Rule 11 on the ground of non payment of the court fee. However, once an application seeking extension of time for deposit of court fee had been filed, the trial court should have first considered the said application but without considering the said application and deciding it, there was no occasion for the learned trial court to have allowed the application under Order 7 Rule 11 of the C.P.C. and consequently on this ground alone impugned order merits to be set aside. 7. On the other hand, Shri Jai Prakash Yadav, learned counsel for the respondent does not dispute that the application dated 25.01.2022 has been filed by the appellant and the same is on record before the learned trial court. However, he states that despite repeated opportunities the appellant-plaintiff failed to deposit court fee consequently there is no error in the order of the learned trial court. 8. Having heard learned counsel for the parties and after perusal of the record, it emerges that the learned trial court has allowed the application filed under Order 7 Rule 11 filed by the defendant- respondent herein by contending that the Court fee has not been deposited by the plaintiff. 9. Admittedly, the application dated 25.01.2022 had been filed by the plaintiff seeking extension of time to deposit the court fee. 10. Perusal of the order impugned dated 27.01.2025 as passed by the learned Tribunal indicates that no reference to the pending application seeking extension of time for depositing the court fee has been indicated meaning thereby that the learned trial court has proceeded to consider and decide the application filed under Order 7 Rule 11 without considering the entire material on record. As such on this short ground itself the order impugned dated 27.01.2025 merits to be set aside and is consequently set aside. 11. The matter is remitted to the learned trial court to pass a fresh order in accordance with law after hearing all the parties concerned and considering the application dated 25.01.2022 as filed by the plaintiff. 12. As both the parties are present, let the matter be listed before the learned trial court on 05.05.2025 i.e. the date agreed to by both the parties. There would be no occasion for the trial court to issue fresh notice to the respondent herein. Let the application be decided in accordance with law within a period of eight weeks thereafter. Order Date :- 24.4.2025 prateek Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench