Harphul vs Lakhpat

A.S. Nehra, J.—The plaintiff appellant has filed this appeal against the judgment and decree dated 27-11-1978 passed by the Additional District Judge, Karnal.

In this case, the plaintiff-appellant had filed an appeal against the judgment and decree dated 30 8-1975 passed by the Subordinate Judge 1st Class, Karnal, in the Court of Senior Subordinate Judge, Karnal. In that appeal, a preliminary objection was taken by the respondents counsel that the appeal was incompetent as the copies of judgment and decree appealed against did not bear any Court-fee. The plaintiff appellate thereupon made an application on 31 8 1978, seeking permission to make up the deficiency in the Court-fee. It was stated therein that on 23-8-1978 when the "appeal came up for hearing, the plaintiff appellant learnt that the certified copies of the judgment and decree were not properly stamped and that the omission was bona fide and unintentional The application filed by the plaintiff-appellant was opposed by the defendants-respondents.

Before examining the contentions, some facts may be noticed. The appeal was presented for the first time in the Court of Senior Subordinate Judge, Karnal, exercising enhanced appellate powers, on 1-9-1973, which was ordered to be put up on 2-9-1975 with the office report. The Clerk of Court reported that tie copies of the judgment and decree were not attached and, consequently, the Court-fee could not be checked. The matter then came up before the Court on 2 9 1975 and the order shows that the learned counsel for the plaintiff appellant requested for an adjournment to produce the copies. The case was consequently adjourned to 15-9-1975 on which date, copies were filed and the appeal was ordered to be put up on 16 9-1975 with the office report. The Clerk of Court then reported that the Court-fee paid was correct.

In due course, the appeal was entrusted to the Court of Additional District Judge, Karnal, where it was pointed out that the copies of the judgment and decree did not bear any Court-fee. At one time, it was sought to be suggested on behalf of the plaintiff appellant that the Court-Fee stamps appeared to have been get removed from these copies. This contention however, was not found correct because if the stamps had been removed, the gum would have left some impression on them, which was not there. The plaintiff-appellant''s counsel relied upon Mannan Lal Vs. Chhotaka Bibi, (Dead) by Lrs. B. Sharda Shankar and Others, , for the preposition that Section 149 of the CPC mitigates the rigour of Section 4 of the Court fees Act and it is for the Court to harmonize the provisions of both the Court Fees Act and the Civil Procedure Code, by reading Section 149 C P C as proviso to Section 4 of the Court Fees Act and allowing the deficit to be made good within a period of time fixed by it and that if the deficit is made good, no possible objection can be raised on the ground of bar of linitiation, as Section 149 C.P.C. expressly provides that the document is to have validity with retrospective effect. The plaintiff-appellant was not allowed to make up the deficiency in the Court-fee on the copies of the judgment and decree and the appeal was dismissed being hopelessly barred by time

The learned counsel for the plaintiff appellant has relied upon a Division Bench judgment of this Hon''ble Court reported as Gurdial Singh v. Assa Singh and Ors. (1977) 79 P.L.R. 130. It has been held by the Division

"In the ultimate analysis, therefore, it must be held that Sections 148 and 149 of the CPC are equally attracted to the appeals presented in this Court or Courts below as also to suits in the original trials. Applying the ratio of the decisions cited above, it is evident that unless the Court comes to the finding that the litigant was acting mala fide or with contumacy, the appellant would be entitled to the'' benefit of Section 149 and discretion should be exercised in his favour by allowing him to mike up the deficiency in the Court-fee."

In the present case, it cannot even remotely be suggested that the plaintiff appellant was acting mala fide and that he was guilty of any contumacious conduct in view of the aforesaid Division Bench decision this appeal has to be allowed. I, therefore, set aside the judgment and decree dated 27-11-1978 passed by the'' lower appellate Court and the application filed u/s 149, CPC is allowed and the plaintiff appellant is entitled to the extrusion of time for making good the deficiency in the Court-fee The plaintiff- appellant is allowed three months time from today for making good the deficiency in the Court-fee.

The parties through their counsel are directed to appear before the Additional District Judge, Karnal, on 7th January, 1991.