UNION OF INDIA Vs. RAGHUNANDAN PRASAD

JUDGEMENT

(1.) This appeal has not been admitted yet and no notice of it has been sent to the respondent but he has appeared through counsel and applied that the appeal be dismissed because it is no longer maintainable on account of its being filed after the U.P. High Court (Abolition of Letters Patent Appeals) Act, No. XIV of 1962. The Act received the President's assent and came into force on 13-11-1962. It abolished appeals under Clause 10 of the Letters Patent read with Clause 17 of the Amalgamation Order but saved such appeals as were pending on 13-11-1962. The respondent's contention is that this appeal was not pending on that date and, therefore, cannot be entertained and must be dismissed.

(2.) The memorandum of appeal was presented before the Registrar on 9-7-1962 when this Court reopened after the vacation. The appeal was valued at Rs. 7251.50 nP. and court fee of Rs. 897.50 nP. was paid on the memorandum. The appeal is by the defendant against whom the suit has been decreed for a declaration that the respondent's reduction in rank was illegal, being against the provisions of Art. 311, and for the recovery of Rs. 7251.50 nP on account of the arrears of the salary. The appellant paid court fee on the relief regarding the arrears of the salary but not on the relief regarding the declaration on which court-fee of Rs. 100.00 was payable. A report from the Stamp Reporter was called for about the sufficiency of the court-fee paid on the memorandum and on 27-8-1962 he reported the deficiency of Rs. 100. The memorandum of appeal had been presented in Court on the appellants behalf by its Standing Counsel, who then was Sri Gopal Behari, an advocate of this Court. The case was listed before the Joint Registrar and notice of the listing was given in the cause list in which the name of Sri Gopal Behari was printed. The case was listed on 21-12-1962, 11-1-1963 and 21-1-1963 but nobody appeared on the appellants behalf before the Joint Registrar and the deficiency in court-fee was not made good. On 21-1-1963 the Joint Registrar ordered the memorandum of appeal to be laid before the Court because no one was appearing before him. The appellant changed the Standing Counsel and Sri R. L. Gulati was appointed as Standing Counsel sometime before 21-1-1963. Sri Gulati did not however, file any memorandum of appearance in this appeal. On 31-1-1963 a clerk of this Court made a report on the appeal that the name of Sri Gulati had not been printed in the cause lists for 21-12-1962 and the other two dates. On 4-2-1963 the Joint Registrar recalled his order dated 21-1-1963 and allowed the deficiency to be made good within two weeks. It was made good on 18-2-1963. On 25-2-1963 the Joint Registrar asked for two copies of the memorandum of appeal required for the use of the Court from the appellant's counsel and they were supplied by 8-3-1963. Before the memorandum of appeal could be put up for admission of the appeal the respondent appeared and filed the application praying that it be rejected. The memorandum of appeal could not be put up for admission and the special appeal has not been admitted as yet.

(3.) The first question that arises is whether it could be said that the present appeal was pending on 13-11-1962 and we have no hesitation in saying that it was not. It was held in Lala Gyanchand Vs. Lila Rani, Sp. A. No. 565 of 1962 decided on 6-12-1962 that an appeal comes into existence only when a memorandum of appeal is admitted and registered. In the instant case there is only a memorandum of appeal before us and no appeal. In Lala Gyanchands case, Sp. A. No. 565 of 1962 we took notice of the default on the part of the Court on account of which the memorandum of appeal could not be laid before the Court for admission prior to 13-11-1962 and held that it must be deemed to have been admitted by the Court prior to 13-11-1962. There has been no such default in the instant case on account of which the memorandum of appeal could not have been admitted before 13-11-1962. It was insufficiently stamped and so long as the deficiency was not made good it could not be admitted at all. Sri Gulati contended that it was sufficiently stamped and that the Stamp Reporter's report was wrong. There is no substance in the contention. The suit was for a declaration and for another relief which is said to be consequential relief under Sec. 7 (iv) in a suit to obtain a declaratory decree where consequential relief is prayed for, the court-fee is to be payable on the amount at which the declaratory relief sought, is valued in the memorandum of appeal and Sri Gulati contended that the court-fee was payable under this provision. But this provision was not applied by the respondent and even if it was applicable the court-fee would have been paid according to the amount at which the declaratory relief was valued and not according to the amount at which the consequential relief was valued. The appeal was both for declaration and money and as far as the appeal for money was concerned the memorandum had to be valued according to the amount claimed under Sec. 7 (i) of the Court Fees Act. If court-fee is paid according to the amount claimed (under Sec. 7(i)), it is a case not covered by Sec. 7(iv). In any case the appellant did not object to the stamp reporter's report and paid the deficiency in the court-fee, thereby admitting that the memorandum was deficiently stamped when presented on 9-7-1962. The Registrar's order of 21-1-1963 that it be laid before the Court amounted to refusing to extend the time for making good the deficiency, vide Chapter XI, Rule 13(3) of Rules of Court, and he had no jurisdiction to recall the order and to grant further time. Further, giving the information to Sri Gopal Behari about the deficiency was enough; he remained the appellant's counsel so long as he had not withdrawn himself and no information had been given to the Court that Sri Gulati had been appointed as counsel in his place. When the appellant changed its standing counsel it should have informed the Court of the fact so that all notices in future could be sent to the new counsel. The effect of the deficiency made good on 18-2-1963 was just what it would have been if the appellant had taken back the memorandum and presented it again after removing the deficiency in the court-fee. The proviso to rule 13 of Chapter XI laid down that any time granted by the Registrar for making good a deficiency does not amount to extending the period of limitation. It furnishes an answer to the appellant's contention that when it removed the deficiency on 18-2-1963 it did so with retrospective effect from 9-7-1962. The memorandum of appeal must, therefore, be deemed to have been presented on 18-2-1963 on which date it was barred by time. The appellant has not applied for condoning the delay and the appeal as having been filed within time. In these circumstances the legal fiction that the appeal had been admitted prior to 13-11-1962 cannot be applied in the instant case. When the memorandum of appeal itself is deemed to have been presented on 18-2-1963 there could not have been any appeal pending on 13-11-1962 and this appeal is not saved by Sec. 3(2) of the U.P. High Court (Abolition of Letters Patent Appeals) Act.