P L D 1966 Azad J & K 51 (PLP)

It would thus appear that the question adjudicated upon by the High Court in that case was not the payment of the court‑fees by the plaintiff but the competency of the Revision Petition after the dismissal of the suit by the trial Court. It is also apparent that it was not the question of payment of deficiency in the court -fees on a memorandum of appeal but what the High Court was called upon to decide was the question of court‑fees to be paid on a plaint presented before the trial Judge. The provisions of Order VII, rule 11, were certainly attracted in that case and the plaint could not be rejected unless time had been granted to the plaintiff for payment of the deficient court‑fees. The present case arises out of a memo. of appeal and not a plaint therefore the rulings would not apply to it: In the other case, A I R 1933 All. 572, cited by the learned counsel the facts involved were that memorandum of appeal was presented on the last day of limitation on insufficient stamp. On report by office the deficiency was made up by the order of a Single Judge of the High Court. The appeal was then laid before a Division Bench and was admitted by their order and a paper book was consequently prepared and the case was heard by the Bench. In the course of the hearing a preliminary objection to the effect that no valid appeal was filed within limitation was raised. It was held that "it was too late to question the order of the Single Judge and that it would be unjust to the appellant to dismiss the appeal on the ground that the learned Judge should not have passed the order in view of the, deficiency of the court‑fees". The learned Single Judge in that case obviously passed the order allowing the deficiency to be made, good under section 149, C. P. C., which gave him unrestricted discretion to do it. Besides there was ample justification for the Division Bench to make the above observations as the deficient court‑fees was paid to the Court soon after the office had made an endorsement pointing out the deficiency. In the case before me although the office had reported on 13‑8‑65 the day the appeal was presented that there was deficiency in the court‑fees to the extent of Rs. 284‑14‑0, the appellants had failed to make good the deficiency till now despite the fact that they had attended the Court a number of times since then. As such this ruling too is distinguishable on facts and in no way helps the appellant to bring his case within the purview of section 149, C. P. C. In the third authority referred to by the learned counsel for the appellant, i.e. A I R 1935 All. 620 (II) all that has been laid down is that a Single Judge can decline to receive an appeal insufficiently stamped but once it has been received he cannot subsequently reject it on ground of insufficiency of court‑fees. By receiving the appeal most probably what is meant is admitting the appeal without any reservation. That is not the case here. In the present case the appeal as is evident from the interim order of this Court dated 13‑8‑65 has been received subject to objection by the opposite party in respect of the deficiency in the court‑fees. The deficiency in court‑fees was pointed out in the office report of the even date and the learned counsel for the appellant who presented the appeal knew about it and had even made a note to that effect in his own hand at the bottom of the memo. of appeal. After the presentation of the memo. of appeal there have been as many as four adjournments in the appeal but the appellants or their counsel Sh. Abdul Hamid and Mr. M. A. Farooq did not make any attempt to make good the deficiency in the court‑fees. The appellant could at least apply for extension in the time for payment of court‑fees but even that has not been done. Eventually realising their mistake the appellants made an application on 26‑1‑66 that the amount comprising the deficiency be fixed so that they could pay the same. This in my opinion was merely a clever manoeuvre on their part to meet the objection of limitation and to make out a case for extension in time for the payment of the deficient court‑fees. They have invoked the provisions of section 149, C. P. C. for the purpose but I am constrained to say that their conduct during the proceedings in this Court has been such that no indulgence could be shown to them. A perusal of the memo. of appeal, the application dated 26‑1‑66 and the affidavit would reveal that they have given different explanations at different occasions for their default. This shows that their failure to pay the deficient court‑fee was not due to any bona fide mistake but was deliberate and their negligence was probably responsible for it. This Court, no doubt, has a discretion under the section to allow the court- fee to be paid at any stage but it is not bound to give time for making up the deficiency in the court‑fee as is done in case of plaints under Order VII, rule 11(c). Furthermore, the discretion in favour of a party can be exercised by this Court only in those cases where a party has been acting bona fide, i.e., it has been under an honest mistake or doubt and for that reason has not made an honest attempt to comply with the law. Mere poverty or igno rance or minority as is the stand of the appellants cannot entitle them to any leniency in the matter of payment of court‑fee under the section. As has been already held, the appellants have not been under any honest mistake or doubt as to the amount of the court‑fee to be paid by them, nor have they made any genuine attempt to make good the deficiency within time, therefore, they are not entitled to any extension in the time under the section. Besides there is yet another aspect of the proposition which cannot be ignored and must be taken into consideration before exercising discretion in favour of a party under the section. This is that when an appeal is not filed in time with proper court‑fee the appeal becomes barred and a valuable right accrues to the respondent. The Court should, therefore, interfere in very rare and deserving cases and as a rule should be reluctant to exercise its discretion under the section to the prejudice of a respondent who benefits on account of the bar of limitation. The memo. of appeal in this case was no doubt presented within the prescribed limitation but it was written on insufficiently stamped paper and therefore was received subject to objection by the other party and no extension in time for the payment of deficient court fee was either applied for or granted to the appellants. Despite having knowledge about the deficiency and appending a note to the memo. that the same will be made good later on, the appellant slept over the matter. The inference therefore would be that they were negligent. This inference finds further support from the fact that they have not cared to pay the purchase price into Court as directed by the District Judge uptil now. In these circumstances they cannot claim the benefit of section 149, C. P. C. In this view I am supported by the authorities cited by the learned counsel for the respondent which are on all fours in the present case. I propose to discuss them one by one. In Atma Ram and others v. Kastur Chand and others the appellant filed a memorandum of appeal a day or two before the expiry of the period of limitation. The memo. was signed by his Pleader and contained the following note:

"The memo. of appeal should have been written on Court fee of Rs. 90 but as the client has not come and has not been able to arrange for Court‑fees the memo. of appeal is filed on a court‑fee of annas 8 only. The deficiency will be paid on or before the date of arguments." The learned District Judge rejected the memo. of appeal because it was insufficiently stamped and no sufficient ground was shown for extending the time for supplying the proper court‑fee. In second appeal it was urged that the appellate Court was bound to give time for payment of additional court‑fee under Order VII, rule

11. The learned Single Judge of the Nagpur High Court who heard the second appeal after examining a large number of authorities on the point held that:‑

"An appellate Court is not bound to give time for payment of additional court‑fees when an appeal is deliberately filed on a stamp of trivial value, leaving it open to the appellant after the period of limitation to pay the court‑fee or to decide to take no further steps. There is a distinction in this connection between the powers of an original Court under Order VII, rule 11, of the First Schedule of the Civil Procedure Code when a plaint is written on insufficiently stamped paper and those of an appellate Court when the appeal memo. is insufficiently stamped. In the former case the Court is bound to give time to make up the deficient Court‑fees and in the latter case the Court has a discretion, under section 149 of the Civil Procedure Code to grant him time or not which the Court may refuse to exercise in favour of the appellant." It was further laid down in the same case that sections 4 and 6 of the Court‑Fees Act which are mandatory have provided that the Courts cannot receive a memorandum unless proper court‑fee has been paid; they must, then, reject it unless some special provision in the Code directs that time should be given. 118 I C 228 is yet another case wherein the above principle has been acted upon and Sir Suleman, A. C. J., who heard the appeal has observed:‑ -- "The practice of filing appeals with insufficient court‑fee stamps, knowing that they are insufficient, with a view to save limitation should not be permitted. An appellate Court is not bound to accept an insufficiently stamped memorandum of appeal and to grant time to make it good. It may direct the memorandum to be returned to the counsel with liberty to file it afresh on payment of full court fees accompanied by an application for extension of time under section S of the Limitation Act." The eminent Judge in the same judgment proceeded to observe that the High Court has full power to refuse to accept a memorandum of appeal when it has the endorsement of the stamp reporter that the amount of the court‑fees paid is insufficient; otherwise the provisions of section 4 of the Court Fees Act would be evaded indirectly. In 119 I C 700 an appeal was filed in the Judicial Commis sioner's Court of Nagpur on 19‑7‑1929 on a court‑fee of Rs. 10 against the judgment and decree dated 12‑4‑1929 passed by the Additional Sub‑Judge First Class, Hoshangabad decreeing the plaintiffs claim against defendants for Rs.4,649‑12‑7 with proportionate costs and future interest. The proper court‑fee payable in the appeal was Rs.

260. The appellant made an application along with the memo. of appeal asking a month's time to make up the deficiency in the court‑fee. The application was rejected and consequently the appeal failed. It was observed by the Judicial Commissioner in the course of judgment that:‑ "Section 4 of the Court Fees Act is imperative in its terms and makes it impossible for a Court to entertain a memorandum of appeal upon which the proper amount of court‑fees has not been paid. Section 149, Civil Procedure Code does not give any discretion to a Court to allow a party to make up the deficient Court‑fees where the insufficiency of the stamp was not caused by a bona fide misunderstanding of the law as to valuation but from a negligence to ascertain what the correct amount is." The last case cited by the learned counsel for the respondent was Shahadat and others v. Hukam Singh, Lahore High Court. The facts are that an appeal was filed in the High Court from the order of the lower Court directing execution of the decree holders decree to proceed against Shahadat and others judgment- debtors. The counsel for the respondent raised a preliminary objection to the effect that the appeal was barred by time. The appeal was filed on 7th January 1922, but the copy of the order appealed against filed alongwith the memo. of appeal was unstamped and the translation fee had not been paid. The appeal was returned as incomplete. It was refiled complete on the 17th January. The 9th of January was last day for filing the appeal and it was therefore barred by time when filed on the 17th of January. It was observed by the learned Single Judge who heard the appeal that:‑

"Having regard to the provisions of sections 4 and 28 of the Court Fees Act an appeal cannot be regarded as having been validly presented if the copy of the order appealed against is not properly stamped. It is the duty of counsel when filing an appeal to see that all documents which require a stamp are properly stamped. He cannot shelter himself behind his clerk and if his clerk has been guilty of any carelessness he is responsible for it. Where an appeal is returned as incomplete and is again filed after the expiry of limitation, it is not a sufficient cause for admitting it within the meaning of section 5 of the Limitation Act, that the mistake was made by the counsel's clerk who put in the appeal." For the foregoing discussion I am firmly of the view that it is not a fit case in which discretion under section 149, C. P. C., should be exercised in favour of the appellant for granting extension to them to pay the deficient court‑fee. The appeal is insufficiently stamped and for that reason cannot be accepted. Even otherwise the suit of the plaintiff‑appellants stands dismissed as contem plated by Order XX, rule 14, C. P. C. as they have failed to pay the purchase money into Court as directed by the District Judge. The result is that the appeal fails and is dismissed with costs. S. A. H./S. Q. Appeal dismissed.