Jugal Kishore Narain Singh and others vs Bankey Behari Lal and others

James, J.—This is a second appeal from the decision of the District Judge of Monghyr reversing the decision of the Subordinate Judge. The suit out of which the appeal arises was instituted for arrears of rent due under a zarpeshgi lease giving credit for Rs. 900 zarpeshgi money. The defendants pleaded inter alia that under the terms of the theca the plaintiffs were obliged to refund to them the amount which they had spent in the purchase of occupancy holdings claiming that this amount exceeded the amount of rent due. The Subordinate Judge admitted the written statement of the defendants without requiring from them any court-fee stamp; and he framed an issue on which the parties went to trial, on the question of whether the defendants were actually on account of this claim entitled to a decree in their favour. He took no steps to examine the court-fee on the written statement until the trial had concluded, which is probably to be explained by the fact that he was not quite certain in his own mind regarding the proper amount of court-fees to be demanded. He then intimated, when hearing arguments, that the defendants could not press the question of set off unless they paid court-fee calculated ad valorem on their claim. He allowed them time for this purpose; and in due course the court-fee was paid. The court-fee paid and accepted was less than the amount demanded by the Subordinate Judge. He then proceeded to judgment and gave a decree for the amount which he found due to the defendants on account of the money which had been spent in acquiring raiyati holdings. His decision was reversed on appeal by the District Judge who held that since the written statement did not bear an ad valorem court-fee at the time when it was filed, the Court was debarred from going into the question of set off. For this view he relied on the case of Muthu Erulappa Pillay v. V. Thathayya Maistry, 1917 LB 179 = 36 IC 957, where in it was held by the Chief Court of Lower Burma that the trial Court had improperly allowed a set off when no court-fee has been paid on the written statement.

It docs not appear that in that case the trial Court had applied the provisions of S. 149, Civil P.C. Under that section 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, has the same force land effect as if such fee had been paid in the first instance. The discretion is given to the Court, even where no part of the court-fee has been paid, at any stage to allow the person by whom the fee is payable to pay it; and the learned District Judge took an incorrect view of the law when he thought that the Subordinate Judge had no power to apply the provisions of S. 149, Civil P.C., at the time of hearing arguments. The action of the learned Subordinate Judge in deferring to so late a stage the exaction of court-fee may be subject to criticism; but it is explained in the present case by the fact that, as I have said, the learned Subordinate Judge was not sure in his mind as to the amount of court-fee that was payable. He wavered between three views; the correct view, that court-fee was payable on the whole amount of set off claimed, Chakkhan Lal v. Kanhaiya Lal, 1923 All 118 = 69 IC 921 = 45 All 218; and the incorrect views that court-fee was merely payable on the difference between the set off and the amount claimed in the plaint, or even that court-fee was payable only on the excess of the amount of set off awarded by the decree over the amount claimed in the plaint. It was apparently on this last view of the matter that the learned Subordinate Judge deferred so long the demanding of court-fee, since on that erroneous view of the law he could not know how much court-fee to demand until he knew what kind of judgment he was about to pronounce. He ultimately returned to this last view thinking that he had exacted too large a court-fee from the defendants, whereas he had actually not exacted enough. But the deficiency has now been made good and the question of what is the correct amount of court-fee that has to be paid no longer arises in this case.

The appeal will be allowed, the decree of the lower appellate Court will be set aside and the appeal will be remanded to the District Judge for disposal according to law. Costs may abide the final result.

Macpherson, J.

I agree.