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Judgment
Chandrasekhara Sastry, J.—The plaintiff in Original Suit No. 18/1/1954 on the file of the Subordinate Judge''s Court Karimnagar, is the appellant in this second appeal. The plaintiff sued for possession of the suit properties and for mesne profits. His suit was dismissed. Hence he filed an appeal in the District Court, Karimnagar. The Judgment and decree of the trial court were given on 7-2-1958. The last date for filing the appeal was 20th of March 1958 after allowing time taken for obtaining certified copies of judgment and decree appealed against. The court-fee payable on the appeal memorandum was Rs. 277-7-0 O.S. The appeal memorandum was presented to the District Court, Karimnagar, on the 17th of March 1958 with only a court-fee of Rs. O.S. 100. An endorsement was made on the appeal memorandum as follows:
That the value of the appeal is the value of the suit in the lower court which is Rs. 3150 and a court-fee of only Rs. 277-7-0 is required, out of which Rs. 100 is paid and the remaining amount of Rs. 177-7-0 the appellant will pay within a month''s time. The appellant prays for leave of the court to permit him to do so.
On 18-4-1958 the matter was posted before the court for order. Then it was noted:
The pleader for the appellant was present. Court-fee was not completely paid and he requested for adjournment and the matter was adjourned to 11th July, 1958.
By that time the deficit court-fee was paid and the court ordered that the file be taken on Register No. 4. Notices were ordered to the respondents in the appeal. Respondents 1 and 2 appeared on 30th of October, 1958. 3rd respondent remained ex-parte. The appeal was posted to 23-4-1959 for arguments and it was again adjourned for arguments on four occasions In the meanwhile the advocate appearing for respondents 1 and 2 died and they engaged another advocate. He filed an application I.A. No. 38 of 1960 praying to dismiss the appeal on the ground or limitation as sufficient court-fee was not paid on the memorandum of appeal within the period of limitation. Notice was given to the appellant in I.A. No. 38 of 1960 which was posted to 23-3-1960 for counter. At the request of the appellant''s advocate time was given for filing counter till 15-4-1960. But no counter at all was filed at any time in the I. A. by the appellant. The appeal and the application were posted for final hearing on 14-12-1960. The learned District Judge held that the respondents were entitled to question the earlier order of the court extending the time for payment of the deficit court-fee payable on the memorandum of appeal. Next, he considered the question whether the appellant had sufficient ground for praying for extension of time for paying the deficit court-fee. Then he noted that not even a counter was filed explaining the reasons for the delay in paying the deficit court-fee. Ultimately he expressed the view that the appellant did not have sufficient reason for not paying the full court-fee within the period of limitation. Therefore, he dismissed the appeal as barred by limitation. Hence this second appeal is filed by the plaints. It is argued by Mr. Madhava Rao, the learned counsel for the appellant that the respondents were not entitled to notice . before the time was granted for paying the deficit court-fee and that the learned District Judge has erred in reopening the prior order and dismissing the appeal as barred by limitation. But this argument is opposed to the decision of the Madras High Court in Janaswami Venkataseshamma Vs. Sri Prativadi Bhayankaram Ranganaryakamma alias Kanakavalliammavarlangaru, where it was held by a Bench of the Madras High Court that-
Where a Judge of the High Court sitting in the Admission Court excuses the delay in payment of court-fee on the memorandum of appeal without notice to the other side it is open to the other side to file an application to the High Court to dismiss the appeal on the ground that the delay ought not to have been excused." But Mr. Madhava Rao contends that this decision requires reconsideration in view of the subsequent decision of the Supreme Court in Ganesh Prasad v. Narendra Nath, AIR 1958 SC 431. I do not find anything in the decision which would indicate that the decision in Janaswami Venkataseshamma Vs. Sri Prativadi Bhayankaram Ranganaryakamma alias Kanakavalliammavarlangaru, requires reconsideration. What all the Supreme Court pointed out in that case was that-
the question of payment of court-fees is primarily a matter between the Government and the person concerned.....
In that particular case the delay in paying the deficit court-fee was excused by the High Court after notice to the respondent The Supreme Court held that the discretion exercised by the High Court would not be interfered with because the question of payment of court-fee is primarily a matter between the Government and the person concerned.
Reliance also has been placed upon the decision in R.L. Singh v. A.A. Singh, AIR 1958 Manipur 7 . No doubt some of the observations in that decision support Mr. Madhavarao''s contention. But the decision of the Madras High Court in Janaswami Venkataseshamma Vs. Sri Prativadi Bhayankaram Ranganaryakamma alias Kanakavalliammavarlangaru, is binding upon me.
Next, reliance is placed on the decision in Jagannath Prasad and Others Vs. Mst. Ram Dularey and Others, Even with regard to this as I have already indicated, the decision of the Madras High Court is binding on me. It has to be noted that the learned Judges in Jagannath Prasad and Others Vs. Mst. Ram Dularey and Others, pointed out that-
If the opposite party desires to be heard in the matter, he must raise the objection at the earliest possible opportunity.
I respectfully agree with this observation of the learned Judges in the Allahabad case. In the present case, though the appeal in the Dist. Court was presented in the year 1958 the I.A. 38 was filed only in the year 1960. The appeal after being posted for arguments underwent some adjournments. Apparently the then advocate on record did not think it fit to raise this objection after he entered appearance. The learned District Judge when dismissing the appeal on the ground that it was barred by limitation did not take this fact into consideration.
Further, in the circumstances of this case, I feel that the learned District Judge should have held that he was justified in extending the time for paying the defect court-fee.
No doubt, Mr. Jahangir Ali, the learned counsel for the respondents very rightly pointed out that though the appellant had several months to me the counter affidavit in I.A., he did not choose to do so. Till now, there is nothing on record to indicate as to why the counter was not filed and the reason for the omission has not been specifically stated by the appellant''s counsel. Whatever that be, the learned District Judge notes that the appellant''s counsel stated the reason for the delay in paying the deficit court-fee. No objection to such statement seems to have been taken on behalf of the respondents at that stage. The learned counsel for the appellant stated before the lower court that the appellant did not have the necessary amount with him by the date when the appeal was filed. That the appellant was anxious to file the appeal and prosecute it, is quite clear from the fact that he presented the appeal memorandum even on 17th March 1958 when there was time till 20th March for presenting. Even with regard to this, Mr. Jehangir Ali rightly pointed out that poverty is no ground at all for extending the time for paying the deficit court-fee.
But having regard to the fact that the appellant presented the appeal memorandum, though with deficit court-fee, before the time of expiry and the court-fee paid then was not a mere token payment but a court-fee of Rs. 100 I hold that the appellant made out a case for extending the time for paying the deficit court-fee. In fact, the deficit court-fee was paid by 11-7-1958.
In view of these facts the second appeal has to be allowed and the judgment and decree of the learned District fudge are set aside and the case is remanded to the Court of the District Judge, Karimnagar, for disposal on merits. But the second appeal is allowed only on condition that the appellant pays Mr. Jehangir Ali, the learned counsel for the respondents, a sum of Rs. 100 towards costs on or before 15th day of November, 1965. There will be no further order as to costs in this second appeal but the court-fee on the memorandum of the second appeal will be refunded to the appellant.