The Himachal Pradesh Horticultural Produce and Marketing and Processing Corporation Ltd. vs Bali Ram and Another

V.D. Misra, C.J.—This order will dispose of Civil Revisions Nos. 172,175 and 176 of 1981, since a common question of law has arisen.

The Himachal Pradesh Horticultural Produce and Marketing and Processing Corporation Ltd., Simla, the present Petitioner filed civil suits in the Court of Senior Sub-Judge, Simla. An application u/s 149 of the CPC was also made for seeking time to affix the requisite Court fee on the plaint. It was stated that the Petitioner had failed to obtain the requisite Court fee at that late hour of the day. Since it was the last day of the limitation, the Petitioner decided to file the plaint without affixing the requisite Court fee. When the application u/s 149 of the CPC came up before the learned Senior Sub-Judge, he dismissed it. The reason given was this. According to the Senior Sub-Judge, the deficiency would have resulted if at least some Court fee had been paid by the Petitioner. As no Court fee had been affixed on the plaint, there was no question of making up deficiency in the Court fee and so the said section would not be applicable. The learned Senior Sub-Judge also found that in the application the Petitioner had asked for grant of time to affix the requisite Court fee and so it was not an application for making up deficiency in the Court fee.

I am afraid that highly technical view of the matter has been taken by the learned Senior Sub-Judge. Whether the Petitioner had asked for extension of time and should have asked for making up of deficiency in the Court fee, should not have made any difference. The purport of the application was to makeup deficiency irrespective of the phraseology in which the Petition was drafted. Moreover, it cannot be said that where a person does not affix any Court fee because of the circumstances in which a plaint has to be filed, he cannot ask for making up deficiency. To me the matter is simple. The requisite Court fee has not been paid by the Plaintiff-Petitioner. This would include nonpayment of any Court fee. The rest should be a question of making up deficiency. The Petitioner had laid the foundation for his not being in a position to buy the requisite Court fee. The Court fee which was required to be paid in the case was indeed which the Petitioner could get only from the Treasury and no vendor of the Court fee stamps could have sold the Court fee of the requisite amount. I also find that on the application made u/s 149 of the Code of Civil Procedure, the Petitioner had affixed a Court fee stamp of Rs. 1.25. In other words, whatever Court fee was available with him he used it on the application. The trial Court was making a material irregularity in not allowing the Petitioner to make up the deficiency.

A preliminary objection has been raised by the Respondents. It is this. Since the plaint has been rejected and an appeal lay, therefore, the present revisions are not maintainable. It is not in dispute that the appeal lay only to the District Judge and not to this Court. The powers of revision u/s 115 of the CPC can be exercised by this Court as long as no appeal lies to this Court and this Court finds that a material irregularity has been committed by the trial Court. I find that a similar view was taken by the Patna High Court as well as by a Full Bench of the Allahabad High Court. In Tipan Prasad Singh and Ors. v. Secy. of State AIR 1935 Pat 86 while repelling a similar contention it was observed:

A further point is raised on behalf of the opposite party that an application in revision should not be entertained inasmuch as the Petitioner had a right of appeal to the District Judge from an order rejecting the plaint. It is true that ordinarily this Court will be reluctant to entertain an application in revision where the party has not resorted to a remedy available to him by way of appeal, but it does not follow that merely because the Petitioners did not prefer an appeal to the District Judge in this case the High Court has no power to interfere, in revision. Section 115 provides that the High Court may act under that section in a case which has been decided by a Court subordinate to it and in which no appeal lies to the High Court. It does not provide that it cannot interfere in a case where an appeal lies to an inferior Court.

A similar view was taken "by the Bahela Kuer Vs. Garjan Rai and Others,

A Full Bench of the Allahabad High Court in Lila Vs. Mahange and Others observed that as a matter of practice the High Court may not interfere if another convenient remedy by way of an appeal to a lower Court is available to the Petitioner, but it cannot be laid down as a general proposition that the High Court has no power of interference at all or should not interfere.

The result is that the revisions are accepted. The impugned order refusing to grant an opportunity to the Petitioner to make up the deficiency in Court fee is hereby set aside. The Petitioner is allowed to make up the deficiency in Court fee within one week from today. Mr. Jamalta states that in fact he has already purchased the requisite Court fee. The matter is remanded to the trial Court to proceed according to law. The parties present before me are directed to appear before the trial Court on 15th January, 1982. No order as to costs.