Rasik Behari Prasad Chowdhury and others vs Hriday Narayan and another

The question for decision in this case is whether the Court has power to order the appellant, who is the plaintiff in this suit, to pay a deficit Court-fee upon his memorandum of cross-objection in the lower appellate Court before it will entertain his appeal here. The circumstances are a little peculiar and the question arises in this way. The plaintiff brought a suit against the defendants for a declaration of his title and recovery of possession in respect of 10 gundas share in certain property. The fee he paid upon his plaint was based upon a valuation of ten times the Government Revenue and the fee actually paid arrived at in that manner was Rs. 3-12. In the trial Court the plaintiff succeeded as to half his claim, that is to say, he got a decree in respect of to 5 gundas only and not 10 gundas. From that decree the defendants appealed contesting the plaintiffs right to recover even 5 gundas. The plaintiff entered a cross-objection claiming that he was entitled not only to the 5 gundas under the decree of the trial Court, but that he was entitled to the other 5 gundas also. In respect of his cross-objection he paid a court fee of Rs. 1-14-0 upon the same basis of calculation as in the trial Court. The defendants'' appeal in the lower appellate Court succeeded and the plaintiff''s cross objection failed. The result, therefore, was that the plaintiff recovered nothing. From that decision he entered a second appeal in this Court. That appeal, however was concerned only with what I may call the first 5 gundas or that part of the claim which was decreed in the trial Court. As far as the 5 gundas refused by the trial Court were concerned, the plaintiff did not pursue his appeal in this Court.

Now when the case came before this Court the taxing officer came to the conclusion that the fee payable by the plaintiff appellant was not a fee based upon ten times the Government Revenue, but an ad valorem fee. Therefore, he was ordered to pay a deficit upon his memorandum of appeal. It was also found that his plaint in the trial court was deficient in the matter of fee and those two fees he has now paid. It was also found by the taxing officer that his memorandum of cross objection in the lower appellate Court was deficient to the Amount of Rs. 88-2, that is to say, there was a deficiency in respect of property which is no longer the subject of appeal to this Court, and the question for us to determine is whether before we allow his appeal to proceed we should insist upon his paying the fee which he ought to have paid in his cross-objection in the lower appellate Court. It is contended on behalf of the appellant that this Court has no jurisdiction in the matter, because the subject matter of his cross-objection in the lower appellate Court is not now before the Court, and he relies upon the case of Kirala Varma v. Chadayan Kutty (1891) 15 Mad. 81. The facts of that case however, are entirely different from those of the present. What happened in that case was that the plaintiff obtained decree for arrears of rent and possession of certain parcels of land. There were four defendants and he recovered against them all. One of the defendants appealed and during the appeal it was discovered that the plaintiff respondent had not paid the proper court fee on the plaint: His decree was not objected to except by one of the defendants, who only objected to it in so far as it related to his interest, namely one-fourth of the whole. The District Judge before whom the appeal came considered that he was entitled to give the defendant a decree because the respondent, the plaintiff, had not paid the full court fee in the Court below. He made an order that the defendant''s appeal should be allowed merely upon that ground. When the matter came before the High Court, it was pointed out that the Court had no jurisdiction over the whole subject matter of the suit as the appeal by the fourth defendant related to one item only, and it seems obvious that as the plaintiff had a vested interest in that part of the decree which had not been appealed from, the court clearly had no jurisdiction to interfere with that interest merely because one of the defendants appealed against anther portion of the decree.

Now the matter so far as this Court is concerned appears to me to depend upon whether of not where there has admittedly been a deficit in the Court-fee in the lower appellate Court and the person by whom that deficit was payable appeals to this Court, this Court has power to refuse to entertain his appeal until the deficit in the lower appellate Court has been paid. The question is not one which arises under any particular provision of the Court fees Act, but it is a matter which, as has been held in this Court, is within the inherent jurisdiction of the Court. In the case of Narain Prasad v. Sheo Kameswar Prasad Singh (1917) 3 P.L.J. 101=43 I.C. 489 it was laid down by the late Chief Justice and Mr. Jwala Prasad that the plain duty of the Court was to require the appellant to pay deficiency in the Court fee in the court below before they could entertain any appeal arising out of the same suit by that appellant. Now, although it is true that in the present case the appellant is not appealing from that part of the decree of the lower appellate Court which disallowed his cross objection, nevertheless he was in default and it is a default arising out of the same suit and he is now asking this court to hear his appeal, although he in the lower court did not comply with the provisions of law requiring him to pay a certain court fee. There can be no doubt as to his liability in the lower Court, and I think that the Court has discretion in the matter to insist upon his paying the proper court fees throughout the litigation as a condition precedent to allowing him to come before this Court in appeal and ask it to set aside the decree of the lower Appellate Court.

The result is that the appeal will be stayed until the appellant has complied with his obligation to pay deficit court fee in the lower appellate Court which amounts to Rs. 88-2-0. The appellant will be allowed ten days'' time within which to pay the court fee.