Ram Singh vs Buta Singh

Arun Bhansali, J.—This appeal comes up on application filed by the respondent under Sec. 151 CPC for dismissing the appeal for non-payment of Court Fee in time and application filed by the appellant under Sec. 149 CPC r/w Section 151 CPC seeking extension of time for payment of Court Fee. The present appeal was filed on 02.01.2006 by the appellant aggrieved against the judgment and decree dt. 21.09.2005 passed by the Additional District Judge, Anoopgarh. Alongwith the appeal, an application under Order XLIV, Rule 1 CPC was filed seeking permission to file the appeal as an indigent person.

It appears that the application and the appeal remained pending without any further proceedings in terms of Order XXXIII CPC, whereafter on 13.05.2011 the following order was passed on the application seeking permission to file the appeal as pauper:-

"1. Learned counsel for the petitioner does not press the present pauper application as the appellant is ready to pay Court Fees in the first appeal.

Accordingly, present pauper application is dismissed as not pressed."

Consequently, the application was dismissed as not pressed. Thereafter, on 16.05.2011, the requisites Court Fee of Rs. 25,058/- was submitted.

An application was filed by the respondent (IA No. 1532/2014), inter-alia, submitting that this Court has been rendered functuous officio to pass any further order regarding payment of Court Fee, the appeal is time barred and as such, the same deserves to be dismissed on the ground of limitation.

Whereafter, an application (IA No. 2306/2014) has been filed by the appellant under Sec. 149 CPC, inter-alia with the averments that the application under Order XLIV, Rule 1 CPC was not pressed bonafidely on 13.05.2011, 14.05.2011 & 15.05.2011 being second Saturday and Sunday, the requisite Court Fee was deposited on 16.05.2011. It is further submitted that though on 13.05.2011, the Court permitted the appellant to not press the application, specific time for submitting the Court Fee was not granted and therefore, it was prayed that the time may be extended till the date of payment of the Court Fee.

A reply to the application has been filed by the respondents opposing the grant of application.

It is submitted by learned counsel for the appellant that when the application was not pressed on 13.05.2011, the intention of the appellant to pay the Court Fee was clearly indicated and whereafter the Court Fee has been filed on the next available day.

It was further submitted that though the Court did not pass an order granting time for payment of Court Fee in terms of Order XXXIII, Rule 15A CPC and/or Order XLIV, Rule 2 CPC, the fact that the Court Fee now stand paid, the time deserves to be extended under Sec. 149 CPC.

Reliance was placed on judgment of this Court in Randal Chandel vs. Rajasthan Financial Corporation and Ors., RLW 1996(3) Raj. 698.

Opposing the submissions, learned counsel for the respondent submitted that once while passing the order dt. 15.05.2011, this Court did not exercise power under Order XXXIII, Rule 15A CPC, this Court has now been rendered functuous officio and the application under Sec. 149 CPC is not maintainable and consequently, the same deserves to be dismissed.

Reliance was placed on judgment of this Court in Smt. Teeja Devi vs. Karan Singh and Ors., S.B. Civil Misc. Appeal No. 18/1994 decided on 12.05.2009; Chunna Mal Vs. Bhagwant Kishore, ; Devendar Kumar Bharti Vs. Mahanta Raghuraj Bharti and Others, .

I have considered the rival submissions made by learned counsel for the parties.

A perusal of the order dt. 13.05.2011 (supra) reveals that the Court noticed the prayer made by the appellant that the appellant was ready to pay the Court Fee in the first appeal and consequently, dismissed the application as not pressed.

It is true that the Court did not pass an order on the application under Order XXXIII, Rule 15A CPC and/or Order XLIV, Rule 2 CPC granting time to the appellant to pay the requisite Court Fee, however, it also cannot be said that the Court declined the prayer to the appellant to pay the requisite Court Fee after having noticed the said prayer. Another important aspect of the matter is that if the prayer would have been declined by the Court, the Court would have consequently ordered dismissal of the appeal. However, no such order dismissing the appeal has been passed by this Court and therefore, it cannot be said that the prayer as such was declined by this Court.

In the case of Ramlal Chandel (supra), this Court while considering the similar circumstance where the trial Court did not grant any time to pay the Court Fee, came to the conclusion that the plaint does not stand rejected automatically and therefore, it cannot be said that the appeal in the present case stood rejected automatically.

The judgment of this Court in Smt. Teeja Devi (supra) was delivered relying on a earlier judgment of this Court in Smt. Bhairu Dan and Ors. vs. Ratan Lal and Anr., ILR 1952 Rajasthan 497. The judgment in the case of Smt. Bhairu Dan was delivered at a time when provision of Order XXXIII, Rule 15A CPC were not introduced in the CPC, which came to be included by amendment of 1976 w.e.f. 01.02.1977 and therefore, the judgment in the case of Smt. Bhairu Dan and Smt. Teeja Devi apparently has no application in the present circumstance where the provisions of Order XXXIII, Rule 15A CPC and Order XLIV, Rule 2 CPC clearly envisaged not only grant of time to pay the requisite Court Fee but extend the same from time to time and provide that the appeal shall be deemed to have been instituted from the date on which the application for permission to sue as an indigent person was presented.

The judgment in the case of Devendra Kumar Bharti (supra) and Chunna Mal (supra) also pertains to the period prior to the introduction of provisions of Rule 15A CPC in Order XXXIII and consequently have no application to the case in hand.

In view of the above discussion, the application filed by the appellant under Sec. 149 CPC seeking extension of time is allowed and the application filed by the respondent seeking dismissal of the appeal for non-payment of Court Fee is dismissed. List the appeal for admission on 23.05.2014.