Gopendra Kumar Porya vs Debendra Nath Porya

Renupada Mukherjee, J.—An interesting question of procedure relating to the filing of plaints and memoranda of appeals in civil courts with insufficient Court fees has arisen in this Rule. The question has arisen under the following circumstances: The three Petitioners of this Rule who were Plaintiffs in a title suit obtained a decree against the Defendants opposite parties. Some of the Defendants of the trial court, namely, Defendants Nos. 3 and 4 filed an appeal in the court of the District Judge, Midnapore, on November 17, 1955. The requisite Court fee for the memorandum of appeal was Rs. 20-12. The memorandum of appeal was filed with a token Court fee of Rs. 1. Time was allowed till November 26, 1955, for making good the deficit Court fee. There was a prayer for extension of time on behalf of the Appellant on that date and the date was extended to December 8, 1955, on which date the deficit Court fee was filed. An order was made on that date for issuing notice of appeal upon the Respondents. It may be mentioned here that the memorandum of appeal was ordered to be registered on the very day of its presentation although the Court fees paid on the memorandum were insufficient. After having been served with notice of appeal, the Plaintiffs Petitioners obtained the present Rule. Their contention is that the memorandum of appeal was presented with a nominal Court fee with full knowledge of the Appellants that the memorandum was insufficiently stamped and that the District Judge in whose Court the appeal was filed acted arbitrarily and without jurisdiction in granting time till November 26, 1955, for making good the deficit Court fee.

Mr. Roy Choudhury appearing on behalf of the Plaintiffs Petitioners contended that the learned District Judge passed the order on the day of presentation of the appeal, namely, on November 17, 1955, for putting in the deficit Court fee on November 26, 1955, without exercising any judicial discretion and as time was thus allowed arbitrarily, it must be held that a material irregularity was committed by the lower appellate court in the exercise of its jurisdiction and its order directing regis tration of the appeal should be set aside and the memorandum of appeal should be rejected as it did not bear necessary Court fees within the period of limitation for presentation of the appeal.

In the above connection Mr. Roy Choudhury drew my attention to Section 149 of the CPC which runs as follows:

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.

Mr. Roy Choudhury submitted that the Court can no doubt grant time and may also extend time periodically for the purpose of making good deficit Court fees either wholly or in part u/s 149 of the Code, but that section itself requires that the court must exercise its discretion in such matters. Mr. Roy Choudhury submitted that the order,sheet of the lower appellate. court would show that palpably no such discretion was exercised and the lower appellate court allowed time for payment of deficit Court fee almost automatically without being moved in that behalf by the Appellant. In this connection he referred me to a case reported in Jnanadasundari Shaha v. Madhab Chandra Mala. ILR (1931) 59 Cal. 388. It has been held in that case that receiving a memorandum of appeal with a Court fee which is on the face of it insufficient is without jurisdiction. This case was decided in 1931. Mr. Roy Choudhury also drew my attention to one or two similar cases in which it has been held that a Court has got no power to receive a plaint or memorandum of appeal which is on the face of it insufficiently stamped. I shall not refer to these cases because all these cases were decided before 1925 and it must be held that after the Bengal amendment of Section 6 of the Court Fees Act made in 1935 those decisions cannot be regarded as good law. The Bengal amendment adds a Sub-section to Section 6 of the Court Fees Act and it runs to the following effect. It is not necessary for me to quote the first Sub-section of Section 6 but I quote here Sub-section (2) which was incorporated by the Bengal amendment of 1935.

(2) Notwithstanding anything contained in Sub-section (1) or in any other Act, a Court may receive a plaint or memorandum of appeal in respect of which an insufficient fee has been paid, subject to the following conditions, namely:

(a) no such plaint or memorandum of appeal shall be registered unless the Plaintiff or Appellant has, before such date as the Court may have fixed in this behalf, paid to the Court such reasonable sum on account of Court fee as the Court may direct:

(b) the Court shall reject the plaint or memorandum of appeal if the sum referred to in Clause (a) is not paid before the date fixed by the Court.

The Bengal amendment makes it clear that a Court may receive a plaint or memorandum of appeal in respect of which an insufficient Court fee has been paid subject to some conditions. One of these conditions is that the Court shall reject the plaint or the memorandum of appeal if the deficit Court fee is not made good before the date fixed by the Court.

In the above connection Mr. Roy Choudhury argued that the Bengal amendment quoted has no doubt conferred a power upon a law Court to receive a document which has been insufficiently stamped, but he submitted that this reception in the very nature of things cannot be automatic or arbitrary and where it appears that no judicial discretion was exercised in the matter,of such reception, the High Court should interfere in revision. In this connection Mr. Roy Choudhury drew my attention to two cases of the Allahabad High Court. One of these cases is reported in Shri Krishna Vs. Sm. Saraswati Devi, . It has been held in that case that a party cannot be allowed to get round the provisions of the Court Fees Act by filing a memorandum of appeal immediately prior to the end of the period of limitation bearing a Court fee which is known to be insufficient. It has further been held in that case that discretion u/s 149 of the Code should only be exercised where the Court is satisfied that sufficient grounds existed for the full Court fee not having been paid in the first instance. The other Allahabad case referred to by Mr. Roy Choudhury is reported in S. Wajid Alt v. Mt. Isar Bano Urf Isar Fatma AIR (1951) All. 64 F.B. This is a Full Bench decision of the Allahabad High Court and among other things it has been held therein that when an insufficiently stamped document is presented to the Court, the Court has not to decide whether it will exercise its discretion in allowing time to the party presenting the document to make good the deficiency. Both these decisions are, however, u/s 4 of the Court Fees Act which applies to High Courts and not u/s 6 as has been amended in U.P. on similar lines as in Bengal,-the amendment running to the following effect:

(2) Notwithstanding the provisions of Sub-section (1), a Court may receive a plaint or memorandum of appeal in respect of which an insufficient fee has been paid, but no such plaint or memorandum of appeal shall be acted upon unless the Plaintiff or the Appellant, as the case may be, makes good the deficiency in court fee within such time as may from time to time be fixed by the Court.

Indeed it has distinctly been laid down in the above Full Bench case that Section 4 of the Court Fees Act which applies to High Courts and Courts of Small Causes in Presidency towns is not subject to or controlled by the provisions of Section 6 as it stands amended in Section 6(2) in U.P. Section 6(2) does not apply to the High Court and therefore the High Court is not bound to give time thereunder at least once to make good deficit court fees when an insufficiently stamped memorandum is presented to it. So these two cases do not help Mr. Roy Choudhury and the implication of the Full Bench case is decidedly against the contention put forth by him.

Mr. Banerjee appearing on behalf of the Defendants opposite parties contended, on the other hand, that once a Court has received a document which is insufficiently stamped, it is bound to give time to the party for making good the deficit Court fee. That time may be short, for example, not beyond the date of filing or it may be a period of some days. But Mr. Banerjee submitted that the Bengal amendment of Section 6 of the Court Fees Act made in 1935 read with a relevant portion of Order 7, Rule. 11 of the CPC would make it clear that once a Court has received an inadequately stamped document, it must allow some time to the party for making good the deficit. The relevant portion of Order 7, Rule. 11 of the Code which is useful for our purpose runs to the following effect:

The plaint shall be rejected in the following cases:

(c) where the relief claimed is properly valued, but the plaint is written upon a 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 ;

Mr. Banerjee contended on behalf of the Defendants opposite parties that in the matter of receiving an insufficiently stamped document no question of discretion arises. If the Court receives such a document, it must give some time to the party filing it for making good the deficit Court fee before the Court can reject the document on the ground of insufficient Court fees. After giving an anxious consideration to this matter, I am inclined to accept the submission of Mr. Banerjee. I have already quoted the Bengal amendment to Section 6 of the Court Fees Act made in 1935. The amendment gives a Court power to receive an insufficiently stamped document which is otherwise prohibited by Sub-section (1) of the section. This act of reception, in my mind, is purely a physical act and does not involve the exercise of any discretion. The Court may receive such a document or the Court may not receive it having regard to the availability or non-availability of Court fee stamp on a particular date or to any other reason which the Court is not bound to record. At that stage the Court cannot certainly register an insufficiently stamped document as was done through inadvertence in this particular case. But if the Court chooses to take the document in its custody, it must fix a time for payment of deficit Court fees under Clause (b) of Sub-section (2) of Section 6 of the Court Fees Act incorporated by the amendment of 1935 and also under Clause (c) of Rule Order. 7 of the Code of Civil Procedure. This time, as I have already said, may be very short or may be comparatively long. But in any case, once the Court chooses to take an insufficiently stamped document in its custody, there is no other alternative but to give some time for payment of deficit Court fee and if that order is not complied with by the party filing the insufficiently stamped document, then the Court will have the power to reject the document. In this respect there is some difference between Section 149 of the CPC and Section 6 of the Court fees Act as amended by the Bengal amendment of 1935 read with Order. 7, Rule 11 of the Code. Whereas in the case of an extension of time given u/s 149 of the Code, the Court must exercise its discretion, no question of exercising this discretion arises in the other case where the Court has chosen to take into its custody a document which is insufficiently stamped. There is no direct case of our High Court on this point. But on a consideration of Section 6 of the Court Fees Act as amended by the Bengal amendment of 1935 and also of Clause (c) of Order. 7, Rule. 11 of the Code of Civil Procedure, I am of opinion that a subordinate court can receive an inadequately stamped document or refuse to receive it at the time of filing and it is not necessary to exercise any judicial discretion at that stage either for the purpose of receiving the document or for the purpose of not receiving it. But after the court does receive such a document it is bound to give some time for making good the deficit Court fees and thereafter it can reject the document if the deficit Court fees are not made good within the time fixed. In this particular case the lower appellate court chose to receive the document. I should, however, say for the guidance of the subordinate judiciary that this reception of a plaint or memorandum of appeal with nominal Court fees need not be automatic. Once, however, a Court has received such a plaint or a memorandum of appeal and has granted time for the purpose of filing requisite Court fees, the High Court should not interfere in revision.

In the result, this Rule is discharged.

Parties will bear their own costs in this Rule.