Shri Hem Chandra Sarkar Vs Smt. Jyoti Bala Chakraborty

@JUDGMENTTAG-ORDER

R.S. Bindra, J.C.

1. The prayer made in this application, dated 8-9-69 filed u/s 149 of the Civil Procedure. Code by the appellant Hem Chandra Sarkar, is for condonation of the delay that occurred in paying the deficient Court-fee required for the memorandum of appeal presented in this Court on 29-1-1969.

2. The relevant facts are that the respondent Jyoti Bala Chakraborty instituted a suit against the appellant Hem Chandra Sarkar for the latter''s ejectment from a house and for the recovery of arrears of rent, compensation, and mesne profits. The reliefs granted in the decree made by the trial Court were for the eviction of Hem Chandra from the house in dispute and for payment by him of Rs. 1750/- on account of rent, Rs. 300/- by way of compensation, and Rs. 50/- P.M. as mesne profits until the delivery of possession of the house by him to Jyoti Bala. Hem Chandra went in appeal against that decree and the Additional District Judge, Tripura, set aside the decree for his eviction and for mesne profits but affirmed therest of it. Jyoti Bala filed second appeal in this Court against the decree of the Additional District Judge and that appeal was accepted and the decree of the trial Court was restored in full. This Court made the following order respecting mesne profits:

The appellant will be entitled to recover possession of the house and also damages @ Rs. 50/- per mensem for the subsequent period from 1-10-57 until the date on which she obtains possession of the suit house. They should be ascertained under Order 20, Rule 12 C.P.C. separately on a petition. The appellant will have to pay Court fee on the ascertained amount before she executes the decree for arrears of rents or for damages.

3. Pursuant to the direction given by this Court, Jyoti Bala moved a petition in the trial Court for ascertaining the damages. Hem Chandra filed objections pleading non-maintainability of the petition and bar of limitation. The trial Court held, by its order dated 16th of December, 1968, that Jyoti Bala was entitled to a decree for mesne profits at the rate of Rs. 50/- per mensem from 1-10-1957 until 4-11-1968, the date preceding the one on which she had secured possession of the demised house. A final decree in accordance with this finding was consequently passed. It is against that decree that Hem Chandra filed an appeal in this Court on 29-1-1969.

4. The appeal was filed on a Court fee stamp of Rs. 10/- and the nature of the appeal was mentioned as miscellaneous. The appeal was admitted by this Court and notice issued to the respondent. When the appeal came up for hearing before me on 29-7-1969, none put in appearance on behalf of the respondent Jyoti Bala. However, I raised the following two objections suo motu:

(i) Whether the memorandum of appeal has been properly and adequately stamped and

(ii) Whether this Court has jurisdiction to entertain and try this appeal.

5. I adjourned the case on that day to 23-8-1969 to enable the appellant''s counsel to prepare himself for addressing the Court respecting those two points. On that date the appellant put in an additional Court-fee of Rs. 538.25 to make up the deficiency.

6. The appeal was put up before me on 8-9-1969 in the presence of the counsel for both the parties. It was urged on behalf of the appellant that the deficiency in the Court-fee having been made up, arguments on point no. (ii) raised by the Court on 29-7-1969 be heard. However, since there was no application for condoning the delay in making up the deficiency in Court-fee an adjournment was granted until 9th of September for presenting such an application. The application was filed on 8th of September, 1969, itself and since it was opposed by the respondent on the 9th, parties'' counsel addressed arguments on its merits.

7. Shri P.K. Sarkar urged on the authority of The State of Punjab Vs. Nand Kishore, , that the appellant should be permitted to make up the deficiency in terms of Section 149 of the Code. Shri M.K. Dutta, representing the decree-holder, contended, on the other hand, that the prayer made by the appellant should be rejected for the reasons that it was not proved that it was on account of some bona fide mistake that the full Court-fee had not been paid when the appeal was filed on 29-1-1969, and that no application u/s 149 had been made at the time the appeal was presented in this Court. He cited the case of Jai Bhagwan Vs. Om Prakash and Others, to shore up this stand. After examining the two authorities, I have come to the conclusion that the one relied upon by Shri M.K. Dutta is distinguishable and that the facts of the case in hand are more analogous to that of the authority cited by Shri P.K. Sarkar.

8. Section 149 of the Code reads as under:

Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

The appellant can surely avail of this statutory provision for praying to the Court to make up the deficiency in Court-fee. It is correct that the appellant cannot claim as of right, while moving the Court under this section the payment of the additional Court-fee for it is plainly deductible from the language used that the matter rests in the discretion of the Court. In the present case, however, I am inclined to exercise the discretion in favour of the appellant for it appears, as is mentioned in the application made u/s 149, that his counsel did not give him the proper advice. The appeal was headed as a ''Miscellaneous Appeal'' by the counsel, although actually it was an appeal against the final decree. The Registrar of this Court also laboured under the impression that it was a Miscellaneous Appeal and adequately stamped as is apparent from his report dated 25-2-1969. It is not in dispute that a Court-fee of Rs. 10/- was sufficient if it were in fact a Miscellaneous Appeal. It would indeed be hard if the appeal were thrown out on a technical point for no apparent fault of the appellant himself, especially when he lost no time in making up the deficiency after the objection was raised by this Court suo motu. Hence, if the matter rested only on the exercise of discretion in favour of the appellant I would do so in context of the circumstances narrated for I feel satisfied that it is a case of bona fide mistake on part of the appellant and that mistake is attributable to wrong advice given by a highly senior counsel engaged by him. However, I find that the appellant can claim as of right the privilege of making up the deficiency in Court-fee in view of clauses (b) and (c) of Order VII Rule 11, read with Section 107 of the Code.

9. Clauses (b) and (c) of O. VII, R. 11, of the Code run as under:

The plaint shall be rejected in the following cases:

(a)...

(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so:

(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so:

(d)...

It appears appropriate that Section 107 of the Code be reproduced here. It is in the following terms:

(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

Sub-section (2) of Section 107 gives the appellate Court the same powers and assigns to it the same duties as are conferred and imposed on the Court of original jurisdiction in respect of suits instituted therein. Indisputably, a Court of original jurisdiction has to give time to a plaintiff for correcting the valuation of a suit if the relief claimed is undervalued, and to make up the deficiency in the Court-fee if the plaint is insufficiently stamped, as enjoined by clauses (b) and (c) of O. VII, Rule 11. In the memorandum of appeal submitted to this Court by Hem Chandra, the relief claimed has been undervalued and in consequence it had been also insufficiently stamped. Therefore, in terms of clauses (b) and (c) of O. VII, Rule 11, read with Section 107 of the Code this Court was bound to give time to him for correcting the valuation and making up the deficiency in Court-fee. That was admittedly never done until the deficiency was noted by me on 29-7-1969. Thereafter as well, the Court did not call upon the appellant to correct the valuation and make up the deficiency in Court-fee. Instead, he was asked to satisfy this Court that the memorandum of appeal had been adequately stamped. The appellant then felt, it appears, that the plaint had not been properly stamped and so he voluntarily put in the additional Court-fee stamps to make up the deficiency. Under the circumstances, no fault can be found with the appeal as at present in the matter of its valuation and the Court-fee stamp required for it. Section 149 states unambiguously that when the document has been properly stamped after it had been filed in the Court the document shall have the same force and effect as if such fee had been paid in the first instance.

11. I must state here that there is a sharp conflict of opinion amongst the various High Courts in India on the point whether the provisions of clause (c) of Rule 11 apply to appeals. I am inclined to follow the view that they do apply to the appeals because the phraseology of sub-section (2) of Section 107 leaves no room for doubt on the point. Therefore, the appellate Court is bound to grant time to the appellant for making up the deficiency in the Court-fee if the memorandum of appeal is insufficiently stamped. That Court cannot in the latter circumstance adjudge the fate of appeal merely on the basis of the provisions of Section 149 in exercise of its discretion without complying with the command given by clauses (b) and (c) of Rule 11 of Order VII and giving time to the appellant to do the needful. If the appellant fails to make up the deficiency in the court-fee within the time allowed to him by the appellate Court, then alone the latter may reject the memorandum of appeal as insufficiently stamped and not otherwise.

12. That an appellant can make up the deficiency in the court-fee in the manner Hem Chandra of this case has done can also be supported on the basis of section 28 of the Court-fees Act. That section enacts, in its first part, that no document which ought to bear a stamp under this Act shall be of any validity unless and until it is properly stamped. It is mentioned in the second part of the section that if such document is through mistake or inadvertence received, filed or used in any court or office without being properly stamped, the Presiding Judge or the head of the office, as the case may be, or, in the case of a High Court, any Judge of such court, may, if he thinks fit, order that such document be stamped as he may direct; and on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance. I have stated above that the Registrar of this Court made a report on 25-2-1969 that the memorandum of appeal had been properly stamped. It is apparent that he had admitted the memorandum of appeal and then acted upon it by sheer inadvertence. He was, I believe, chiefly influenced in acting in that manner by the fact that the memorandum had been described as a Miscellaneous Appeal. Nevertheless, its admission without objection indicates inadvertence and as such I have the statutory authority to call upon the appellant to make the deficiency in court-fee, and once that deficiency is made up in compliance with the order given, the appeal shall be considered as having been properly stamped as in the first instance.

13. In fairness to Shri H.N. Kar a brief reference must be made to the case of Jai Bhagwan Vs. Om Prakash and Others, cited by him. In that case the certified copies of judgments of the first appellate and trial courts had been insufficiently stamped when filed along with the memorandum of second appeal. The High Court held that the appeal must be dismissed as barred by time because the deficiency in the court-fee stamp on the two documents had been made good after the period of limitation for the appeal had run out. The High Court evidently refused to exercise the discretion vesting in it u/s 149 of the Code in favour of the appellant. The distinguishing feature between the facts of that case and the case in hand is that in the latter case it was the memorandum of appeal which had not been adequately stamped. Clause (c) of rule 11 of O. VII read with section 107 of the Code applies only to the memorandum of appeal and not to the certified copies of the judgments subjoined to the memorandum of appeal. Hence, the High Court could not have given time to the appellant of the reported case for making up the deficiency of stamp respecting the certified copies under clause (c) of rule 11. The High Court failed to exercise its discretion in favour of the appellant u/s 149 on the basis that it had not been proved that the documents could not be fully stamped despite the exercise of due care and attention. The High Court followed the view taken by a single Judge of the Lahore High Court in the case of Shahadat v. Hukam Singh, AIR 1924 Lah 401 , in preference to a Full Bench decision of that Court in AIR 1938 361 (Lahore) and a decision of the Delhi High Court in Custodian of Evacuee Property, New Delhi Vs. Rameshwar Dayal and Others, . It appears that an earlier Division Bench authority of the Punjab High Court in the case of The State of Punjab Vs. Nand Kishore, , in which the aforementioned Full Bench decision of the Lahore High Court in the case of AIR 1938 361 (Lahore) was cited with approval, was not brought to the notice of P.C. Pandit, J., who gave the judgment in the case of Jai Bhagwan Vs. Om Prakash and Others, . It was held by the Lahore High Court in AIR 1938 361 (Lahore) that the discretion conferred on the Court by section 149 is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection, it was observed further, should be construed in the sense that word is used in the General Clauses Act and not as used in the Limitation Act. I may point out that the expression "good faith" is defined in the General Clauses Act as: "A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not". Following these observations made by the Lahore High Court, and which observations were cited with approval by the Punjab High Court and the Delhi High Court as stated above, I feel satisfied that it would be proper exercise of discretion u/s 149 of the Code if Hem Chandra, the appellant in this case, were permitted to make up the deficiency in court-fee.

14. As a result, I allow the application made u/s 149 but make no order as to costs. The appeal shall be considered to have been filed within the period of limitation. The parties'' counsel shall now address arguments on the second point raised by me on 29th of July, 1969.