SHRI KRISHNA Vs. SM SARASWATI DEVI

JUDGEMENT

(1.) A memorandum of appeal was presented to us yesterday one day prior to the expiry of the period of limitation by learned counsel, who at the same time asked the Court to allow the appellant one month's time within which to pay the deficiency in the court-fee amounting to Rs. 705-10-0. It is not in dispute that the court-fee payable on the memorandum is Rs. 709-6-0; the court-fee in fact paid is Rs. 3-12-0. It is clear therefore that the memorandum of appeal is presented with an insufficient court-fee, and with the knowledge of its insufficiency, for the purpose of saving limitation.

(2.) Section 4, United Provinces Court-fees Act provides that inter alia, no memorandum of appeal shall be received by a High Court unless the full court-fee thereon has been paid. That section must however be read in conjunction with Section 149, Civil P. C., which gives the Court power, in its discretion, to allow payment of the whole or part of the court, fee to be made after the document has been received; and we have been asked to exercise our discretion is favour of the appellant on the two-fold ground that he has not sufficient money available now to pay the court-fee and because memoranda of appeal have, in similar circumstances, been received in the past.

(3.) The practice of filing memoranda of appeal immediately prior to the end of the period of limitation bearing a court fee which is known to be insufficient has been severely condemned in a number of cases. In Brijbhukhan v. Tota Ram, 50 ALL. 980 : (A. I. R. (16) 1929 ALL. 75). Sulaiman J., as he then wag, was of opinion that such an attempt to get round the provisions of the Court-fees Act should not be tolerated and that the proper course, if a litigant has not got sufficient money ready to pay the whole of the court-fee, was for the appeal to be filed when such court-fees have been made good accompanied by an application for extension of time. With great respect I agree with that opinion. The great weight of authority is in favour of the view that the Court has, under Section 149 of the Code, a full discretion in the matter--the cases will be found in Brijbhukhan's case : 50 ALL. 980 : (A. I. R. (16) 1929 ALL. 75) and in Jnanadasundari Shaha v. Madhabchandra Mala, 59 Cal. 388: (A. I. R. (19) 1932 Cal. 482) and that discretion should, in my opinion, only be exercised where the Court is satisfied that sufficient grounds exist for the full court-fee not having been paid in the first instance, for the effect of extending the time is to deprive the respondent of the right which otherwise arises from the fact that an appeal not filed in due time with the proper court-fee is barred.