Mool Chand and Others vs Pir Tirath Nath Chela Gir Revail Nath and Others

Gokal Chand Mital, J.—The Appellants (in R.S.A. Nos. 68 and 69 of 1981 before me), filed two separate appeals before the District Court on 3rd October, 1978, against the judgment and decrees of the trial Court dated 20th August, 1978. In the opening sheet, the value for purposes of jurisdiction and court-fee was stated as Rs. 500/- in each of the two appeals and a court-fee of Rs. 70/- was paid thereon. The certified copies of the decree sheets which were attached with the appeals also showed that the value for purposes of jurisdiction and court-fee was Rs. 500/-. The office of the District Judge did not raise any objection that the appeals were insufficiently stamped. The appeals came up for motion hearing before the Additional District Judge and he also did not notice that the appeals were insufficiently stamped and issued notices to the opposite side. On 10th September, 1980, in the other connected appeals, an objection was raised by the counsel for the Plaintiff-Respondent that the appeals were insufficiently stamped and because of that objection, the Appellants filed applications on 11th September, 1980, u/s 149 of the Code of Civil Procedure, for permission to make up the deficiency in court-fee and in fact, paid the deficient court-fee on 12th September, 1980, on the valuation of Rs. 2,000/-each. In spite of that, by order dated 30th October, 1980, the lower appellate Court refused to extend the time for making up the deficiency in court-fee and held the appeals to be barred by time. The Defendants have come up in second appeal to this Court.

After hearing the counsel for the parties, I find that the both the appeals deserve to be allowed and the order dated 30th October, 3980, passed by the Additional District Judge, deserves to be set aside. The Court below did not extend the time for making up the deficiency in court-fee in view of a decision of this Court in Jabar Singh v. Shadi 1978 RLR 517. The facts of that case are clearly distinguishable from the facts of the present case. The facts of the present case are more akin to the decision of this Court in Gurdial Singh v. Massa Singh 1977 RLR 197.

The Court below was also in error in not extending the time solely on the ground that the appeals would still be time barred as the court-fee was paid on the 12th September, 1980. A reading of Section 149 of the CPC clearly shows that the moment time is granted to make up the court-fee, it dates back to the date of filing of the appeal and it is not disputed that when appeals were filed on 3rd October, 1908, they were well within time. Moreover, on the basis of my decision in Raj Kumar v. Amar Singh dated 7th August, 1980, it is a fit case for granting time for making up the deficiency in court-fee and I order accordingly.

For the reasons recorded above, both the appeals are allowed, the order of the lower appellate Court dated the 30th October, 1980, is set aside and the appeals are held to be within limitation. The lower appellate Court will restore the appeals to their original numbers and will dispose of the same on merits. The parties through their counsel are directed to appear before the Additional District Judge, Kurukshetra, on the 10th March, 1981. No order as to costs.