MANNA LAL Vs. MST CHHOTKA BIBI

JUDGEMENT

(1.) I agree fully with Bishambar Dayal, J. and may add few words. There is a distinction between an appeal that is barred by time and an appeal that does not lie at all or is filed through an insufficiently stamped memorandum of appeal which a High Court is forbidden by Section 4 of the Court Fees Act to receive. The ban imposed by Section 4 on the receipt by a High Court of a document insufficiently stamped is not only unambiguous but also emphatic and absolute, bearing no exception at all. Section 6(2) of the Court Fees Act allows a Court to receive a plaint or a memorandum of appeal even though it is insufficiently stamped but it is not to be acted upon unless the plaintiff or the appellant makes good the deficiency in court fee within the time allowed and when it is made good within the time allowed S 5 provides that the date of the institution of the suit or the appeal shall be deemed to be the date on which the suit or the appeal was filed. This provision applies only to courts other than High Courts Section 6 makes it clear that it does not apply to High Courts. High Courts are governed exclusively and exhaustively by Section 4. Section 28 of the Court Fees Act, deals with insufficiently stamped documents being received, Filed or used through mistake or inadvertence; a Judge of the High Court or a Presiding Judge of a subordinate court may allow the document to be stamped and upon its being stamped it is to be as valid as if it had been properly stamped in the first instance. This provision is not to be treated as a justification for flouting the provisions of Sections 4 and 6 of the Court Fees Act and no court is deliberately to receive a document insufficiently stamped except in the circumstances mentioned in Section 6(2). No time can be given for making good a deficiency of any court tee except as permitted by Section 6(2) and it folows that a High Court has got no power to give time for making good a deficiency in the court fee; it must refuse to receive the document Section 149 C. F. C. is meant to achieve the same object as Section 28 of the Court Feea Act and should not be so Interpreted as to create a conflict with the provisions of the Court Fees Act requiring refection of an insufficiently stamped document or prohibiting its reception. It is not possible to reconcile the provisions of Section 149 Civil Procedure Code with the clear and emphatic provisions of Section 4, Court Fees Act except in one way, which I shall state presently. In Wajid Ali v. Isar Bano, AIR 1951 All 64 a Full Bench of this Court held that Section 149 is to be read at a proviso to Section 4, Court Fees Act in order to avoid contradictions between the two provisions and that the result of reading them together is: "(1) Ordinarily a document Insufficiently stamped is not to be received ..... in a Court. (2) When, however, an insufficiently stamped document (a presented to the Court, the Court has to decide whether ft will exercise its discretion in allowing time to the party presenting the document to make good the deficiency. (3) If it decides that time should not be granted, it will return the document as insufficiently stamped." This interpretation is quite inconsistent with the provisions of Section 4 which do not admit of any discretion in the matter. The absolute prohibition contained in Section 4 cannot be converted into a discretionary matter through the process of interpretation. Section 149 is a general section not applicable to a particular court whereas Section 4 is exclusively meant for a High Court; when regard is had to this fact it fs easy to reconcile them by saying that Section 149 applies to courts subordinate to High Court but not to a High Court itself. There is nothing to indicate that it was meant to enable a High Court to flout the provisions of Section 4. Actually it must give way to Section 4; Section 4(1) of the Code itself lays down that "in the absence of any specific provision to the contrary nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force." The Court Fees Act was in force when the Code was enacted and is a special law dealing with the subject of payment of court fees on documents produced in courts. Therefore, Section 149 of the Code cannot limit or otherwise affect Section 4 of the Court Fees Act and does not permit an insufficiently stamped memorandum of appeal to be received at all and does not permit the deficiency in the court fee to be made good subsequently. An insufficiently stamped memorandum of appeal must not be received by a High Court in any circumstance. Section 4 C. P. C was not at all noticed by the Full Bench in Wajid Ali's case, AIR 1951 All 64 otherwise it would have held that Section 149 C. P. C. cannot prevail against Section 4 Court Fees Act. Its decision requires reconsideration. The result is that what this Court had on 12-14-1963 was only a memorandum of appeal and not an appeal. It was as good as a memorandum of appeal which did not lie at all.

(2.) A memorandum of appeal that is barred by time stands on a different footing; Section 3 of the Limitation Act does not prohibit its being received, on the other hand it requires the appeal to be dismissed Second Division of the First Schedule to the Limitation Act deals with appeals and not memoranda of appeals; it is an appeal that is governed by the law of Limitation and not a memorandum of appeal. Consequently it is an appeal that is to be dismissed under Section 3 and not a memorandum of appeal. The question of limitation strictly does not go to the root of the jurisdiction of a court to receive a memorandum of appeal; it must receive it though it must dismiss the appeal subsequently. An insufficiently stamped memorandum of appeal cannot be received at all and the law regarding the effect of a memorandum of a time-barred appeal cannot recklessly be applied to a memorandum of appeal that is insufficiently stamped.

(3.) I have said that Section 149, C. P. C. cannot be applied in the face of Section 4 of the Court Fees Act. But even otherwise what happened here is that an appeal came into existence with effect from the date of its institution e.g. 9-11-1962 only after 3-1-1963 when this Court condoned the delay under Section 149, C. P. C. in paying the deficiency in the court fee. That there was an appeal pending in this case on 12-11-1962, the date mentioned in Act No. 14 of 1962, could be said only on and after 3-1-1963; prior to that date it could not be said that there was an appeal pending on 12-11-1962. On 13-11-1962 it could not be said that there was any appeal pending; there was only a memorandum which did not mature into an appeal because it was insufficiently stamped. If Section 149 were applicable it would mature only on 3-1-1963 when the appellant was permitted to make good the deficiency. What we have to consider is whether actually on 12-11-1962 an appeal was pending or not; the question has to be answered as on the date on which Act No. 14 of 1962 came into force i.e. on 13-11-1962. Could it be said on 13-11-1962 that on 12-11-1962 this appeal was pending? Regardless of how this question could be answered on and after 3-1-1963 it could not be answered otherwise than in the negative on the day on which it arose. It is a mistake to answer the question as if it arose for the first time now i.e. after 3-1-1963. We have to decide the question now but it arose on 13-11-1962 and must decide it as if we were deciding it on that date.