Deonandan Misra vs Ganga Prasad and Others

Macpherson, J.—This second appeal is preferred by the contesting defendants and their representatives, who were the appellants in the lower Appellate Court, against the dismissal of their appeal by that Court as barred by limitation because the full Court-fee had not been paid within the period of limitation.

The suit was instituted for a declaration that a rehan bond executed by the defendant No. 4, Musammat Jogin Kuar, was valid, for recovery of possession of the rehan property and for antecedent mesne profits. The valuation of the rehan property was given as Rs. 900 and that of the antecedent mesne profits as Rs. 1,184 3-6 and Court fee was paid upon Rs. 2,084-3 6. The suit was decreed against the contesting defendants with costs, the order being that the plaintiff should recover possession of the rehan property, and that the amount of the mesne profits to which they were found to be entitled should be determined in a separate proceeding. In calculating the costs the full stamp fee and Pleader''s fee on Rs. 2,084-3-6 were allowed to the plaintiff.

The judgment of the Subordinate Judge was delivered on 10th August, 1927. The contesting defendants filed an appeal on the let September, 1S27. They valued the appeal at Rs. 900 and paid Court-fee of Rs. 40 only instead of the proper Court-fee of Rs. 88-8-0. On the same date the learned District Judge ordered that the appeal ''be properly valued and deficit Court-fee should be paid within the period of limitation. On the 19th September which was the last day of limitation the deficit Court-fee of Rs. 48 80 was filed; but the valuation of the appeal was not altered. The learned District Judge on that date directed that the appeal should be valued at Rs. 2,084-3-6 and the deficit Court-fee of Rs. 91.80 should be filed within the period of limitation and he indicated the decision in Banwari Lal v. Sheo Sankar Misser I Ind. Cas. 670 : 13 C.W.N. 815. The appellants took no steps till the 2nd November, when a petition was filed on their behalf which merely submitted that the appellants were not bound to pay Court-fee on the decree for mesne profits. The learned District Judge in his order of the 5th November observed that the petition was not moved, went on to hold that it was clear that the appellant was bound to pay Court-fee on the mesne profits claimed and as that had not been done dismissed the appeal on the ground of limitation.

This second appeal has been preferred against that order and Mr. Nirsu Narain Sinha has in the main argued two points, the first of which is that Court-fee is not payable on the mesne profits or at least on the whole of the mesne profits as valued by the plaintiff but only on a valuation of the mesne profits to be made by the defendants appellants. To my mind there is no substance in this submission even if it were not covered by authority and the defendant-appellant is bound in circumstances like the present to value his appeal preferred against the whole decree at the same amount at which the subject-matter was valued in the first Court. The provisions of a Statute enacted for purposes of revenue should not be examined as to their reasonableness in all eventualities. But apart from that consideration there is prima facie nothing unreasonable in the defendant appellant paying the Court fee in such circumstances, since it is the duty of the Appellate Court to see that if he has a good case the Court-fee is reimbursed to him or if, as is alleged in this case, the mesne profits have in any case been over-estimated from ulterior motives that at least a direction is made making the costs due to the claim for mesne profits depend upon the eventual result in respect of the mesne profits, so that if a plaintiff has misused the Statute enacted for revenue purposes he alone shall suffer and the defendant shall not. But as has been already indicated, the matter is covered by authority. In the decision in Banwari Lal v. Sheo Sankar Misser I Ind. Cas. 670 : 13 C.W.N. 815 to which the learned District Judge drew the attention of the appellants the matter has been fully discussed in circumstances practically similar to the present. The views there expressed have my respectful concurrence and appear to conclude the matter. In this Court the Taxing Judge (Roe, J.) in 1918 in Manik Chand Ram v. Bibi Najiban 49 Ind. Cas. 962 followed the Calcutta decision. The learned Advocate for the appellants cites Kanhaiya Lal and Another Vs. Seth Ram Sarup, . That decision is, however, distinguishable as a suit for accounts, not in pari materia with the present case, and in any case I am not prepared to accept it in so far as it appears to differ from the decisions which I have already cited. This point, therefore, has no substance.

The second contention is that in the circumstances the provisions of Section 149 of the CPC should be applied. It is urged that there was at least some room for doubt in the minds of the appellants whether Court-fee on the mesne profits or at least on the sum of Rs. 1,184-3 6 was payable in appeal and reference is made to the decision of this Court in Ram Sahay Ram Pandey v. Lakshmi Narain Singh 42 Ind. Cas. 675 : 3 P.L.J. 74 : 5 P.L.W. 18 where it is suggested that the Court may exercise its discretion in favour of the appellant when the question of the amount of the Court fee is open to doubt or when an honest attempt appears to have been made to comply with the law. On. the other hand, Mr. Shiveshwar Dayal on behalf of the respondents has painted out that appellants throughout maintained the position that no further Court-fee was payable at all and that they could not be in any doubt, as the initials of their legal adviser appear against the order of the 19th September, in which attention is drawn to the decision in Banwari Lal v. Sheo Sankar Misser I Ind. Cas. 670 : 13 C.W.N. 815, The appellants, in my judgment, were never in any doubt and they made no real attempt to comply with the law. The fact is that at the time they were not in a position to pay the Court fee. Manifestly they experienced difficulty even in collecting money to pay the Court-fee on a valuation of Rs. 900. They paid less than half the Court-fee on that valuation at the time of filing the appeal and could only pay the balance on the last day of limitation. It is a safe inference that on'' that day they would not have been in a position to pay the Court-fee on Rs. 2,048.36, and they asked for no extension of time in which to pay. Accordingly this is not a case in which any application of Section 149 of the CPC is admissible. The second plea also fails.

I would accordingly dismiss this appeal with costs.

Dhavle, J.

I agree.