Satnam Singh vs Parkash Chand

Ajay Kumar Mittal, J.—In this revision petition, the defendant-petitioner has challenged the order dated 18.08.2008 passed by the District Judge, Sangrur, whereby his appeal was rejected on account of non-affixation of court fee on the memorandum of appeal.

Briefly stated, the facts of the case are that a decree for recovery of Rs. 7,00,000/-along with interest at the rate of 1% per month from the date of execution of pronote and receipt, i.e. 7.11.1999, till 22.04.2006 along with future interest at the rate of 6% per annum from the date of decree till its realization with proportionate costs was passed against the defendant-petitioner.

The defendant-petitioner filed an appeal against the aforesaid decree before the lower appellate Court. However, the court fee was not affixed on the memorandum of appeal on account of which, the appeal was rejected vide order dated 18.8.2008 passed by the District Judge, Sangrur.

Learned Counsel for the petitioner has referred to Section 149 of the CPC (in short "the Code") and submitted that due to paucity of funds, the petitioner could not deposit the court fee earlier. He further states that in case IS days'' time from today is granted, the petitioner shall deposit the requisite court fee before the lower appellate Court.

In spite of notice having been served on the respondent, no one has put in appearance to oppose the prayer made by the learned Counsel for the petitioner.

I have heard learned Counsel for the petitioner and perused the record. Section 149 of the Code reads thus:

Power to make up deficiency of Court-fees:

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 die 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 same force and effect as if such fee had been paid in the first instance.

A plain reading of the aforesaid provision shows that where the court fee as prescribed by law has not been paid, the Court in its discretion, at any stage, can allow the person by whom such court fee is payable to affix whole or any part of such court fee within extended time. The section being an enabling provision empowers the Court to allow a party to make up the deficiency of court fee payable on any document, i.e., plaint, memorandum of appeal etc. even when the period of limitation as prescribed by law has expired. According to the said section, a defective document is validated retrospectively if the insufficient stamp is made up with the leave of the Court. The power so vested with the Court is to be exercised in an equitable and judicious manner and in the interest of justice but at the same time, the right of the respondent has to be kept in view as well. No party can claim as of right that this power is to be exercised by the Court. However, the Court shall examine the bonafide of a party before extension can be granted to the party for affixing the court fee.

In view of the above, this Court is of the opinion that in the interest of justice, the petitioner deserves to be granted IS days'' time to affix the requisite court fee on the memorandum of appeal filed before the lower appellate Court and accordingly, the order dated 18.8.2008 passed by the District Judge, Sangrur, is set aside.

Consequently, the present petition is allowed and the petitioner is granted IS days'' time from today i.e. 5.8.2009 to deposit the requisite court fee. In case, the petitioner deposits the court fee on or before 20.08.2009, it shall have the same force and effect as if such fee had been paid in the first instance and the appeal shall be treated to have been filed within limitation. Failure on the part of the petitioner to affix the requisite court fee within the time allowed by this Court shall entail in the dismissal of the revision petition.