Jagtu vs Badri and Others

I.K. Kotwal, J.—The short question which presently falls for determination in this appeal is:

Whether the appeal is within time?

The Appellant brought it suit for possession of land on the basis of right of prior purchase which was decreed by the trial court but was dismissed

by the lower appellate court on appeal filed by the Respondents against the said decree. The Appellant again approached the High Court in

second appeal but here too without any success. His appeal was dismissed by a learned single judge of this Court on 29-11-1971 but the learned

single judge granted leave to file Letters Patent Appeal against his judgment. The Letters Patent Appeal was filed by the Appellant on 25-1-1972.

The memo of appeal not being sufficiently stamped, the same was returned by the office to the Appellant on 16-2-1972. The Appellant filed Anr.

memo of appeal on 31-5-1972 with the allegations that the original memo returned to him by the office had been misplaced by his clerk and was

not traceable. He also made an application supported by an affidavit that the time for filing the appeal be extended and the memo of appeal filed on

31-5-1972 be created as having been filed within time. To this an objection was taken by the Respondents that the appeal, as it stood filed on dt.

1-5-1972, was clearly barred by time.

The Appellant examined one, Baldev Raj clerk of the Appellant's counsel namely Mr. R.N. Bhalgotra, as well as the counsel himself as his

witnesses. The Respondents, did not produce any evidence in rebuttal despite seeking number of opportunities for the purpose.

P.W. Baldev Raj, stated that the memo of appeal filed by the Appellant on (sic)-1-1972 was handed over to him by P.W., Mr. R.N. Bhalgotra,

advocate, with whom the witness was working as a clerk in those (sic)s on 16-2-1972 for re-filing the same order making up the deficiency in the

court. As the witness had to leave for Poonch (sic)the very next day he could not carry out (sic) instructions of his advocate. He further (sic)ed that

he returned from Poonch after a record of 6 or 7 months. The witness also proposed that he had kept the memo of appeal in the record pertaining

to decided (sic)s. Mr. R.N. Bhalgotra, advocate, the other witness of the Appellant, stated that he got the memo of appeal dated 25-1-1972 from

the office of the High Court with a direction to make up the deficiency in court fees. The witness instructed his clerk, P.W. Baldev Raj, to do the

needful. Subsequently the witness on not finding the case listed in the court himself made enquiries from the office on 31-5-1972 as to what had

happened to the appeal and was told by the office that the appeal had not been filed till then. The witness without losing further time filed a fresh

memo of appeal on the very same day with the requisite court fee and also made application supported by an affidavit explaining therein the

reasons for filing the fresh memo of appeal and claiming extension of time for reasons stated in the application. This witness further went on to state

that he produced the original memo of appeal filed on 25-1-1972 in the court after the same was traced from his records. This memo of appeal

was produced by the witness on 1st of Dec., 1976, for which he had also made an application explaining the reasons why the same was being

produced so late.

We have heard the learned Counsel for the parties at length and have also carefully gone through the record of the case.

In our opinion the question of limitation does not arise in this case. The case of the Appellant is that he filed the appeal on 25-1-1972 when the

same was well within time. He had to file the second memo of appeal on 31-5-1972 because the original memo of appeal which had been returned

to him by the office for making up deficiency in the court fees was not traceable. This version of the Appellant is supported not only by his two

witnesses namely Baldev Raj and Mr. R.N. Bhalgotra, but also by the fact that the original memo of appeal which bears the endorsement of the

Deputy Registrar showing filing of the same On 25-1-1972, has also been produced in the court by the Appellant. The fact, therefore, and more

especially when there is no evidence in rebuttal, stands fully established that the Appellant filed the appeal against the impugned judgment on 25-1-

1972. Admittedly the appeal on this date was well within time. The only question which we shall be in reality called upon to decide is whether or

not we should exercise our discretion in permitting the Appellant to make up the deficiency in filing the appeal which admittedly the Appellant had

made up on 31-5-1972 though without seeking the prior permission of the court. Section 4 of the Court-fees Act ordains that:

No document of any of the kinds specified in the First or Second, schedules to the Court-Fees Act No. 7 of 1977 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 it, in the exercise of its

extraordinary original civil jurisdiction;

or in the exercise of its extraordinary original criminal jurisdiction;

or in the exercise of its ordinary civil jurisdiction;

or in the exercise of its jurisdiction as regards appeal from the judgments passed under ordinary original civil jurisdiction of the High Court;

or in the exercise of its powers as a court of appeal from Courts subject to its superintendence;

or in exercise of its jurisdiction as a court of reference or revisions;

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 149 of the CPC however, provides:

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 force and effect as if such fee had been paid

in the first instance.

A reading of Section 149 of the CPC would reveal that this section is in a way an exception to the rule contained in Section 4 of the Court-Fees

Act. Section 149 of the CPC is an enabling section and its effect is to confer a retroactive validation on a document which is not duly stamped

within the meaning of Section 4 of the Court-fees Act. If the court is satisfied that there existed circumstances which debarred a party from affixing

requisite court-fee to the document presented by it the court will exercise discretion in favour of the party and permit it to make up the deficiency

even if on the date the document if it were to be filed for the first time its filing would have become barred by time. Once such discretion is

exercised and the party is allowed to make up the deficiency, the proper filing of the document shall date back to the day when it was initially filed

and not when the deficiency was actually made up. In case the court declines to permit the party to make up the deficiency, it shall only hold that

the document filed before it was not existent in the eye of law. Obviously therefore, the plea of limitation in any case would be plainly irrelevant.

Payment of adequate court-fee is a matter which concerns either the State or the party which has to pay the same. The opposite party, strictly

speaking, has no say in the matter and the only point which the opposite party may be permitted to urge in such cases is that the initial filing of the

document was not in good faith. The position would be, of course, different where the document has been initially filed beyond the verge of

limitation and the party filing the same prays that the same may be treated within time for the reasons urged by it. In such cases the plea of limitation

is always available to the opposite party who may have acquired a legal right by the late filing of the document. We may observe that the prayer

made by the Appellant herein that the time may be extended u/s 5 of the Limitation Act was purely based upon misapprehension of law. We are

fortified in taking this view from the observations made by the Supreme Court in Mahasay Ganesh Prasad Ray and Another Vs. Narendra Nath

Sen and Others, , which we reproduce as under (at p. 432):

Secondly the power of the High Court to allow an amendment u/s 149 CPC is clearly one under which the plea of the bar of limitation may be

ignored. There are decisions of very high authority taking that view. The contention therefore that by allowing the amendment the High-Court took

away the present Appellants valuable right to plead the bar of limitation cannot be accepted. It was a matter of decretion for the High Court and

the materials put before us indicate no reason to ho(sic) that the discretion was exercised so as to violate any recognised principles of law (sic) that

by granting leave to amend any g(sic) injustice has been done. As pointed out of the High Court the payment of court-fee (sic) a matter primarily

between the Government and the present Respondents and that was the whole fight in respect of this contention in our opinion therefore the

primary objection fails.

A similar view has been taken by Division Bench of this Court in Collection Land Acquisition v. Shri Dina Nath Mahajan 1976 JKLR 421 : AIR

1977 J and K 11 to which one of us (Anand J.) was also a party.

Turning now to the factual aspect of the case we have no doubt in our mind that there are sufficient grounds which warrant an exercise of

discretion in favour of the Appellant in permitting him to make up the deficiency on 31-5-1972, Mr. R.N. Bhalgotra, witness for the Appellant had

every reason to believe that his instructions had been carried out by his clerk, P.W. Baldev Raj. As deposed by P.W., Baldev Raj., Mr. Bhalgotra

had as many as 600 briefs with him during the relevant period. For a busy lawyer like Mr. Bhalgotra it was not possible (sic) be so meticulous as

to make enquiries from his clerk or other colleagues the very next day as to whether or not the memo had been re-filed after making up the

deficiency. But once he came to know on making enquiries from the office on 31-5-1972 that the memo of appeal had not been re-instituted after

making up the deficiency he exhibited remarkable promptness and filed the memo of appeal on the very same day after fixing to it the requisite

court-fees. Mr. R.N. Bhalgotra is a counsel of long standing and we have no reason to disbelieve his statement much less in the absence of any

evidence to the contrary from the other side. Mr. T.S. Thakur has tried to whittle down the effect of the Appellant's evidence by arguing that the

only evidence from which it should be shown that P.W. Baldev Raj had (sic) fact gone to Poonch the very next day and remained there for 6 or 7

months was the (sic)ary maintained by Mr. Bhalgotra in which (sic)e entries would be normally made by his clerk P.W. Baldev Raj. According to

Mr. Thakur in case the entries during this period (sic)re proved to have been made by some (sic)e else, then and then only it could be said (sic)t

P.W. Baldev Raj had in fact gone to poonch and remained there during all this (sic)e, otherwise the presumption would be at he had been all along

in Jammu and (sic)s, in turn, would have proved gross negligence on the part of both Mr. Bhalgotra and the clerk, Baldev Raj. Mr. Thakur further

(sic)t on to argue that the negligence of Mr. Bhalgotra or his clerk would in the eye (sic)law be negligence of the Appellant him(sic) In our opinion

there is an apparent fal(sic) in the argument of Mr. Thakur. The (sic)ary evidence to show that P.W. Baldev (sic) had gone to Poonch and stayed

there (sic)o 6 or 7 months, was the statement of (sic)W. Baldev Raj. Entries in the diary maintained by Mr. Bhalgotra could be only an evidence

which could either corroborate or contradict P.W. Baldev Raj or for that matter even P.W.R.N. Bhalgotra. It was, therefore, for Mr. Thakur to

have got the diary produced in the Court in order to test the veracity of the evidence given by these two witnesses. This not having been done,

there is no option but to accept the testimony of these two witnesses which in our opinion otherwise does not suffer from any infirmity. The

authorities viz. Rampravesh Singh and Others Vs. Mahesh Singh and Others, and AIR 1938 Nag 1.56 are based upon facts quite different and

distinguishable from the facts of the present case and have, therefore, no application to it.

The initial affixing of court fee also in our opinion was in good faith. The total fee required was Rs. 6/- but the Appellant had affixed a fee of

Rs. 2/- only. The margin was not so big as to persuade us to infer that adequate court fee was not affixed due to any extraneous considerations.

The explanation offered by Mr. Bhalgotra that he believed Rs. 2/- to be the requisite court fee appears to us to be bona fide.

For the foregoing reasons we hold that the present appeal is within time and the same shall now come up for arguments on merits on a date to

be fixed by the Deputy Registrar.