AMAR NATH GUPTA Vs. DISTRICT JUDGE GORAKHPUR

JUDGEMENT

(1.) -Heard Sri Santosh Kumar Srivastava, the learned counsel for the petitioner and Sri A. P. Tiwari, the learned counsel appearing for respondent No. 3.

(2.) THE plaintiff respondent No. 3 filed a suit for specific performance, which was decreed by a judgment dated 5.2.2006. THE petitioner filed an appeal. A sum of Rs. 11,697 towards court fee was required to paid by the appellant. THE petitioner appellant presented the memorandum of appeal by depositing a sum of Rs. 665 and moved an application seeking time to deposit the remaining court fee. THE court vide order dated 9.3.2005 and 15.4.2005 granted time to the appellant to deposit the deficiency of court fee. It transpires that on 16.5.2005, the petitioner deposited a further sum of Rs. 6,500 and prayed further time to deposit the balance amount towards the deficiency of the court fee. THE Court rejected the application for the extension of the time. It transpires that the petitioner moved a recall application and during the pendency of the recall application, deposited the balance sum of Rs. 4,300 towards the deficiency of court fee and submitted before the Court that now the entire court fee had been deposited and therefore, the delay in clearing the deficiency of court fee be condoned and the appeal be registered and the order dated 16.5.2005 be recalled. THE District Judge vide his order dated 7.8.2006, rejected the application of the petitioner. Consequently, the present writ petition.

(3.) THE learned counsel for the respondents further submitted that in view of the provision of Sections 148 and 149, C.P.C. a party could not claim an extension of the time as a matter of right and that under exceptional circumstances, the Court has the discretion to enlarge the time for clearing the deficiency of the court fee. THE learned counsel further submitted, that in the present case, no exceptional circumstances was shown by the appellant for extending the period for clearing the deficiency of court fee and, consequently the Court below was justified in rejecting the application of the petitioner. In support of his submission, the learned counsel for the respondent placed reliance upon a decision of the Division Bench of this Court in Smt. Sukki and others v. U. P. Avas Vikas Parishad, Lucknow, (1999) 1 ACJ 304 and Rajesh Kumar alias Rajoo and others v. Bal Kishan Agnihotri, 1992 ACJ 786 : 1992 (2) AWC 1244.