Darshan Lal and Others vs Ram Rattan and Others

Chet Ram Thakur, J.—This application purporting to be under Sections 148, 149 and 151 of the CPC read with Section 5 of the Limitation Act has been filed by Shri Chhabil Dass, learned Counsel for the Appellants. R.S.A. No. 60 of 1970 had been filed in the High Court on 9-6-1970 against the judgment and decree passed by the District Judge dismissing the appeal of Shri Darshan Lal and affirming the judgment and decree passed by the Senior Sub-Judge.

The Appellants, it appears, did not file the certified copy of the trial Court judgment with the memorandum of appeal and one month''s time was granted by the Court, vide, its order, dated 16th June, 1970, for filing the same. The said judgment, according to the report of the office, dated 10th August, 1970, was filed by the Appellants in the Court, but it was not indicated in the report whether the same was filed within time or not. Further the copy of the judgment of the trial Court was filed without any Court-fee being affixed on the same,

The case came up for hearing before the Hon''ble the Chief Justice on 4th April, 1975, and a point was raised with regard to the date on which the certified copy of the trial Court judgment was filed by the learned Counsel for the Appellants. As already indicated the Appellants were granted one month''s time for filing a certified copy of the trial Court judgment, but in the report of the office there is nothing to indicate when the same had been filed. However, Shri G. C. Banta, Clerk of Shri Chhabil Dass, Advocate, had filed an affidavit on 2nd April, 1975 to the effect that the copy of the trial Court judgment was filed within the period allowed by the Court. Shri H. S. Thakur, learned Counsel for the Respondents, was allowed fifteen days'' time for filing the reply to the affidavit, but, it appears, that thereafter on 5th June, 1975, the Appellant filed this C.M.P. wherein it was stated that the certified copy of the trial Court judgment required to be produced in addition to the judgment and decree appealed against, did not bear the necessary Court-fee stamps of Rs. 1.25 and further that the Court-fee stamps on the said copy could not be affixed due to an oversight and inadvertent mistake and, therefore, he prayed that he may be allowed to affix the Court-fee on the judgment of the trial Court. Shri H. S. Thakur opposed this application.

By the order, dated 4-4-1975, the learned Counsel for the Respondents was allowed 15 days'' time for filing the reply to the affidavit of Shri G. C. Banta, clerk of Shri Chhabil Dass, Advocate, that he had filed the copy of the judgment of the trial court within the prescribed period as allowed by the Court on 16th June, 1970. But the learned Counsel for the Respondents did not file any affidavit controverting this fact and, therefore, in so far as the filing of the application is concerned it must be held that the same was filed within the time allowed by the Court.

Now, the only point is as to what is the effect of not stamping the copy of the judgment of the trial Court when it is required under law to be stamped. It is a common case that the copy of the judgment filed required to be stamped with a Court-fee of Rs. 1.25 and which the Appellants did not affix. He has, therefore, made this application for allowing him to affix this Court-fee as the same could not be affixed due to oversight and inadvertence and which is opposed by the learned Counsel for the Respondents, who contends that if the copy of the judgment is not duly stamped then it means that there is no proper appeal before the court and that permission cannot now be granted to the Appellants in the absence of any explanation how the mistake occurred and, secondly, a valuable right had accrued to the Respondents and, therefore, the Court should not allow the Appellants to pay the Court-fee because it is a vital defect on account of which the appeal must be thrown out and he has drawn my attention to Rule 2 (b) of Chapter I, Vol. V. of the High Court Rules and Orders which requires that every memorandum of appeal shall be accompanied by copies of the decree and judgment as prescribed by Order XLI, Rule I of the CPC Code, and that in the case of second appeals, in addition to the documents prescribed by Order XLI, Rule I of the Code, memorandum shall be accompanied by a copy of the judgment of the Court of first instance unless the appellate court dispenses therewith. However, in so far as this point is concerned, I have already held that there is an affidavit of Shri G. C. Banta, Clerk of Shri Chhabil Dass, learned Counsel for the Appellants but the learned Counsel for the Respondents has not field any reply to the affidavit for which fifteen days'' time was allowed by order, dated 4th April, 1975.

Under Rule 13 of Chapter I, Vol. V. of the High Court Rules and Order the improperly stamped document even though received, filed or used in the Court remains invalid, unless it is proved to the satisfaction of the Court that it was so filed or used through mistake or inadvertence, and time is extended for making up the deficiency in the Court-fees. In the instant case the appeal as already stated was filed on 9th June, 1970, and the copy of the trial Court judgment was ordered to be filed within one month and which the Appellant did, but the same is not stamped.

Section 4 of the Court-fees Act says that no document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, the High Court in any case coming before such Court-

(a) ....

(b) in the exercise of its jurisdiction as regards appeals ....

(e) .... Unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.

Section 28 of the Court-fees Act says that no document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped. But, if any 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. It is a common case that the Court-fee stamp which was required to be affixed on the copy of the trial Court judgment is Rs. 1.25 and it is also not disputed that the same was not filed till 5th of June, 1975. So it is clear that the trial Court judgment could not be received unless the Appellant showed that it could not be filed earlier through mistake. The application for permission to pay this Court-fee stamp was made only after the case had been partly heard by R. S. Pathak, C.J. The affidavit accompanying this application has been filed by Shri G. C. Banta, Clerk of Shri Chhabil Dass, Advocate, who has only sworn to this effect that "the Court-fee stamps on the said copy could not be affixed due to an oversight and inadvertent mistake. It was not intentional." Therefore, this affidavit on the face of it is not sufficient to hold as to how the deponent could not file the Court-fee and how that mistake occurred. Merely to say that it could not be filed due to an oversight and inadvertent mistake will not be sufficient. These words have been used only to satisfy the requirements of the provisions of law. But he has to explain how the mistake occurred which prevented him from affixing the Court-fee stamps on the trial Court judgment. Unless the document which is required under Rule 2(6) of Chapter I, Vol. V. of the High Court Rules and Orders to be filed with the appeal is accompanied by the document duly stamped, there cannot be said to be proper appeal before the Court.

The learned Counsel for the Respondents in order to show that there is no proper or valid appeal for failure of the Appellants to file a memorandum of appeal with the requisite Court-fee firstly relied on Satinder Kaur v. Iqbal Singh 1975 P.L.R. 1 . In this case it was not the question of non-payment of the Court-fee rather in this case the copy of the judgment appealed against had not been filed. But in the instant case the copy had been filed but the only question is of the non-payment of the Court-fee. The second authority relied upon is Jai Bhagwan Vs. Om Prakash and Others, This was a case where the Court-fee though filed was deficient and the same was made good beyond limitation and there was no application u/s 149 of the Code of Civil Procedure, therefore, the same was held to be barred by time.

The third authority is Gursaran Das v. District Board, Jullundur AIR 1927 Lah 884. In this case the Court-fee on the memorandum of appeal was deficient and the same was made good beyond limitation and, therefore, it was held that the delay in making good the deficiency that occurred in consequence of clear negligence, cannot be condoned.

The further authority is Shaliadal and Ors. v. Judgment- Debtors AIR 1924 Lah 401 where it was held that the counsel when filing an appeal has to see that all the documents which require 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 that.

After having perused all these authorities, I am of the view that in this case there is a gross negligence on the part of the counsel as also on the part of his clerk who has filed the affidavit without explaining what was the mistake and how it occurred. It is not a case of making good the deficiency on the memorandum of appeal. It is the certified copy of the judgment of the trial Court which under law is required to accompany the memorandum of appeal. It is a case of non-payment of the Court-fees at all and this application was made as already stated after full five years and that also after the appeal had been partly heard and objection has been taken by the Respondents about non-payment of the Court-fee. Therefore, this mistake is such which cannot be condoned.

In Amar Kaur Vs. Iqbal Singh and Others, where the appeal was filed on the last day of limitation with Court-fee less by rupees three and the application for condoning delay was filed after the expiry of period of limitation pleading mistake on the part of advocate''s clerk, it was held that the filing of appeal was not after exercising due care and caution and hence could not be condoned. Similarly in AIR 1929 294 (Nagpur) it had been held that discretion given to the Court by S. 149 to allow a party to make up the deficiency of court-fees payable on a memorandum of appeal even after the expiration of the period of limitation, prescribed for filing of the appeal, can be exercised in cases where the insufficiency of the stamp was caused by a bona fide mistake or a bona fide misunderstanding of the law as to valuation but not where the Appellant never cared to find out the proper court-fee which he had to pay on the memorandum of appeal. Here in the case before us although the memorandum of appeal is not deficient but the document accompanying the appeal is not stamped at all, in the absence of which there can be said to be no proper or valid appeal before the Court and the Appellants'' counsel as also his clerk had not explained how the mistake occurred and, therefore, such negligence on their part, when they realised only after this point was raised during the course of arguments that they chose to file this application for extention of time under Sections 148 and 149 of the CPC read with Section 5 of the Limitation Act. A similar view has been taken in a Division Bench case of the Calcutta High Court in Saidunnessa v. Tejendra Chandra Dhar and Ors. AIR 1918 Cal 193 that where insufficient court-fee has been paid on a memorandum of appeal the court will not in its discretion u/s 149 allow the deficiency to be made up on the date of the hearing unless it is satisfied that some grounds exist for the exercise of its discretion.

In Saeed Ahmad and Anr. v. Karam Singh AIR 1949 Lah 121 also it has been stated that u/s 148, the Court undoubtedly has discretion to enlarge time for the doing of any act allowed by the Code, even after expiry of the period originally fixed for the purpose, but it cannot be said that where the Plaintiff had plainly been so very negligent, and had moreover completely failed to provide any excuse for his default, that discretion has been properly exercised. So on this basis I think the learned Counsel for the Respondents appears to be right in contending that the Appellants'' counsel has not been able to satisfy this Court that there was sufficient grounds for extension of time as contemplated u/s 149 of the Code of Civil Procedure.

In these circumstances, I am of the view, that there is no proper appeal and this Court will not exercise the discretion in favour of the Appellants when the counsel and his clerk have been grossly negligent.

Learned Counsel for the Respondents says that it is not a question of condonation of delay u/s 5 rather it is a case of extension of time u/s 149. But the very perusal of the application would show that it is not an application u/s 149 only but it is an application u/s 5 of the Limitation Act also. The appeal shall be deemed to have been filed only after the Court-fee was sought to be affixed and that way the appeal is barred by time and there can be no question of extension when in the circumstances of the case narrated above the Appellant''s counsel had acted with gross negligence.

The learned Counsel for the Appellants has further contended that all the cases cited by the learned Counsel for the Respondents were cases where the memorandum of appeal was insufficiently stamped and that they were not cases where the documents required to accompany the memorandum of appeal was not stamped. That is true to some extent, but the principle is the same whether it is the memorandum of appeal or the documents required under law to accompany the memorandum of appeal when it is either deficient in Court-fee or not stamped at all. He has also relied upon some cases in support of his contention that the Court should exercise discretion in his favour for extension of time to permit him to file the Court-fee. The first case is Amar Kaur Vs. Iqbal Singh and Others, where the scope of Section 149 of the CPC fell for consideration. In this authority also it was held that the Court has to be satisfied that the failure to pay the proper Court-fee was for a sufficient reason and that the litigant or his counsel were not to blame. Where the mistake in calculation of the Court-fee is genuine or inadvertent but non-intentional, the time for making good the deficiency can be extended. Therefore, this authority will not assist the learned Counsel for the Appellants because in the instant case he has failed to disclose a sufficient reason for the mistake.

The second authority is Custodian of Evacuee Property, New Delhi v. Rameshwar Dayal and Ors. AIR 1968 Del 183 wherein also it was observed 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. In this case deficient Court-fee stamp to be affixed on the copy of the order appealed from was actually attached with the application u/s 149 and the application had been made for extension of time, before the actual hearing of the case as would be apparent from the observations made in Para 7 of the judgment which is as under:

Apart from the fact that the ratio of the Full Bench decision in Jagat Ram''s case AIR 1938 Lah. 361 has taken away a lot from the value of the approach adopted by the learned single Judge in Shahadat''s case AIR 1924 Lah. 401 I find that in Parbhu Dayal''s case , there was no question of any application u/s 149 of the CPC and it was at the time of hearing that it was found that the judgment of the trial Court attached with the memorandum of appeal was not stamped.A.I.R. 1969 P&H 298 A case of this type, obviously, raises somewhat different considerations from those in which before the actual hearing, an application is made u/s 149, Code of Civil Procedure, and the amount of Curt-fee making good the deficiency is attached with the petition.

So in the face of these observations it is quite apparent that it is a case which is distinguishable from this authority relied upon by the learned Counsel for the Appellants.

The further authority is Jagat Ram v. Misar Kharaiti Ram and Anr. AIR 1938 Lah 361. In this case the suit was instituted by the Plaintiff on the last date of limitation which was 13th January, 1923, and stamped the same with a one rupee stamp instead of stamps of the value of Rs. 210/- which was the proper amount of court-fee chargeable on the plaint. On 16th January the full amount of court-fee was paid and on the same day an endorsement was made on the plaint by the Senior Sub-Judge showing the institution of the suit on 16th January and making over the case to the Court of the Subordinate Judge, Second Class, for disposal. An objection was taken by the Defendants that the suit having been validly instituted only on 16th January when the full amount of court-fee was paid was barred by time. The Court on that ground dismissed the suit. An appeal was taken to the District Judge who took a different view, allowed the appeal and held the appeal within time. Thereupon the Defendants preferred an appeal to the High Court. The single Judge agreed with the Defendants'' contention and he observed that the action of the Plaintiff in not paying proper Court-fee in the first instance was not bona fide. But relying on R. 11 of 0.7, Civil P.C., he dismissed the appeal and maintained the order of the District Judge and he further observed that" ... the worst that the trial Court could do was to ask the Plaintiff to make up the Court-fee on the very day on which the plaint was presented. As it was, the deficiency in the Court-fee had already been made up before the plaint reached the trial Court. In these circumstances, the mere fact that the deficiency had been made up on the requisition by the Senior Subordinate Judge who was not authorised to extend any time for the deficiency in the Court-fee being made up does not appear to me to be material." Thereafter, against this a Letters Patent Appeal was preferred.

At the trial of the issue on the point of limitation the Plaintiff had stated that when they had gone to the treasury on the 14th January at 2.00 P.M. to purchase the necessary stamps, they found the treasury closed and consequently, they were compelled to put in the plaint with a one rupee stamp only. They further averred that the Senior Subordinate Judge had verbally granted them time to make up the deficiency of the Court-fee leviable on the plaint and on their complying with the order, the plaint came to have the same force and effect as if such fee had been paid in the first instance. So, it was in these circumstances that the Court held 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 should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act. Therefore, this authority is also clearly distinguishable because the Plaintiff in that case had given sufficient explanation why he could not affix the proper Court-fee on the plaint. But in the case in hand no explanation had been given as to how the mistake had occurred and why they could not affix the Court-fee at all. It was not ;a case of deficient Court-fee so as to say that they did not know as to what was the Court-fee. But here no Court-fee had been affixed although the counsel knew that it required Court-fee. Therefore, it is sheer negligence on the part of the counsel and a valuable right had accrued to the Respondents who have succeeded in the two Courts below and, therefore, on that ground I think this discretion u/s 149 cannot be exercised in favour of an indolent person. It could only be exercised in the case of a person who had acted ''diligently as a reasonable person. Therefore, I am of the view that this (negligence cannot be condoned and time cannot be extended.

Another authority is Shri Parmanand Arya v. Mrs. Kamla Sethi 1974 RCJ 560 which says that "the matter of Court-fees, whether of the non-payment, deficient payment or delay in payment is not a matter between the parties but is a matter between the revenues on the one hand and the party which had made default in the payment of Court-fees on the other. It is equally well settled that the provisions of Sections 148 and 149 are much wider in their ambit and have to be liberally construed and any default or delay in the payment of Court-fees should ordinarily be condoned." There can be no dispute with the principle but this authority also says that such default or delay in payment of Court-fee should ordinarily be condoned. But the case is distinguishable as already stated that there was a sheer negligence and carelessness on the part of the counsel for the Appellant in not affixing the Court-fee at all. It could be that there had been deficient Court-fee that there was a bona fide mistake. But the non-filing of the Court-fee at all cannot be attributed to a mistake rather it was all due to a sheer carelessness or negligence for which the Court cannot exercise its discretion in favour of the indolent Appellant.

The application, therefore, fails and is dismissed. The further result, therefore, is that there is no proper and valid appeal and the same is also dismissed.