Shri Ved Prakash vs Smt. Shakuntala Devi and Another

Kaiulesh Sharma, J.—The Appellant-applicant has filed this appeal against the decree and judgment dated 7-11-1994 passed by District Judge, Kangra at Dharamshala whereby his appeal was dismissed and the decree and judgment dated 12-4-1994 of Sub-Judge Ist Class (1), Dharamshala, District Kangra was affirmed dismissing his salt. It is not in dispute that in view of the value for the purpose of court fees and jurisdiction, as assessed by the Appellant-applicant, at Rs. 40,000 a court fees of Rs. 2,588 was required to be affixed on the memorandum of appeal. The Appellant-applicant had affixed court fees of Rs. 10 only and moved an application (C. M. P. No. 238 of 1995) seeking two months time to make arrangement for the purchase of the court fee and make good deficiency thereof. The ground for not fixing the requisite court fee was his inability to arrange for the money to purchase the court fee. The application is supported by the affidavit of the Appellant-applicant.

When the appeal as well as C. M. P No. 238 of 1995 came up before this Court on 20-5-1995 notice was issued to the Respondents in the appeal and the Appellant-applicant was permitted to make good the deficiency of court fee within a period of two months as prayed for and the application was allowed On the failure of the Appellant-applicant to make good the deficiency in court fee, the matter was listed for orders on 20-3 1997, when at the request of learned Counsel appearing for the Appellant applicant, the case was adjourned for one week Thereafter, the deficiency in court fee was made good on 26-3-1997 and the case was listed for orders on 27-3-1997, when learned Counsel for the Respondents seriously opposed the extension of time to make good the deficiency in court fee and prayed that the appeal may be dismissed.

This Court has heard learned Counsel for the parties and gone through the record Section 149 of the CPC (hereinafter called the Code) is very clear that the court has the discretion to allow a person at any stage to pay the whole or part of the court fees prescribed for any document and upon such payment the document, in respect of which such fees is payable shall have the same force and effect as if such fees had been paid in first instance. Such a discretion was exercised by this Court when order dated 20-5-1995 was passed and two months time was granted to the Appellant-applicant to make good the deficiency in the court fees Neither he complied with this order nor he prayed for extension of time for its compliance for a period of one year and ten moths till the appeal was listed for orders on 20-3-1997, when the case was adjourned for one week at the request of the learned Counsel for the Appellant-applicant It is thereafter on 26-3-1997 that deficit court fees was filed without making an application for extension of time.

Now the question arises whether in these facts and circumstances it will be just and proper to allow the Appellant-applicant to make good the deficiency in court fees by enlarging the period of two months granted by order dated 20-5-1995. Before answering this question, this Court will advert to the case law cited by learned Counsel for the Appellant-applicant. The first case is of Delhi High Court in Union of India, Delhi v. Roshan Lal and Anr. AIR 1968 Del 165, wherein it is held that a document not bearing proper court fees cannot be considered to be validity presented in the court, but since the question of court fees is between the Revenue and the litigant, the court has discretion to allow a litigant to pay the court fees prescribed for any document by the law at any stage as provided u/s 149 of the Code but while exercising discretion albeit, judicial discretion in favour of a litigant, the court has really to keep all the relevant facts in view.

In Anr. case of Punjab and Haryana High Court in Shrimati Amar Kaur v. Iqbal Singh and Ors. 1972 Rev LR 468 , the learned Judges, constituting the Full Bench have held that while exercising judicial discretion the court has to satisfy itself that the failure to pay the proper court fees was for the sufficient reasons and that the litigant or his counsel were not to blame Similarly, in Prem Narain Vs. Vishnu Exchange Charitable Trust and Others, the learned Judges were of the view that courts below were not right in rejecting the prayer for extension of time to pay the deficit court fees in the facts and circumstances of that case.

On the other hand, learned Counsel for the Respondents has cited one judgment of Bombay High Court in Santoksingh and Another Vs. Radheshyam and Another, wherein the learned Judges referring to Section 149 of the Code have held that once the Plaintiff fails to make good the deficit court fees inspite of the time granted to him u/s 149 of the Code, the court has the power to reject the plaint.

The basic authority on the powers of the court u/s 149 of the Code is Full Bench of Labore High Court in Jagat Ram v. Misar Kharaiti Ram and Anr. AIR 1938 Lah 361, wherein the learned Judges held that the discretion conferred on the court by Section 149 of the Code is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bana fides in this connection should be construed in the sense that the would is used in the General Clauses Act and not as used in the Limitation Act. A thing should be presumed to be done bana fide, if it is done honestly whether it is negligently or not for the purposes of judging whether the discretion u/s 149 of the Code should or should not be exercised in favour of the litigant. In Anr. judgement of the Supreme Judge were dealing with a case in which application for extension of time was made before the time fixed by the High Court for payment of deficit court fees had actually run out and have held that the High Court was not powerless to enlarge the time even though it had per-emptily fixed the period for payment. It was further observed that:

�Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. �Such procedural orders, though per-emptory (conditional decrees apart) are, ion essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely stop a Court from taking note of events and circumstances which happen within the time fixed�.

Applying the ratio of judgments referred to hereingabove to the facts of the present case in which the Appellant-applicant after obtaining order dated 20-5-1995 has not cared to make good the deficiency till 26-3-1997 and has also not come forward to explain the circumstances which prevented him from making good the deficiency during this period, it will not be in the interest of justice and fair play to exercise discretion in favour of the Appellant-applicant to permit him to make good the deficiency which may send a message to the litigants that they may postpone the compliance of the court''s order as long as they can with impunity.

In the result, the appeal is rejected having been insufficiently stamped and not making good the deficiency within the period granted by order dated 20-5-1995 without legal and valid reasons. The court fees is ordered to be refunded to the Appellant applicant in accordance with law. No costs.