UNION OF INDIA Vs. RAMESHWAR PRASAD

JUDGEMENT

(1.) The respondent/plaintiff is an endorsed consignee of a railway receipt whereunder M/s. Vijaya Trading Company booked at Dronachellam Railway Station 660 tins of groundnut oil for Sakti. It was a wagon load consignment and one transhipment en route was necessary. The consignment was received at Sakti on 13-1-1968 and admittedly five tins were found empty while 20 tins were leaking. There was short delivery of 222 Kgs. of oil which the respondent valued at RS. 1924.25 paise. Notices under Section 78-B of the Railways Act and Section 80 of the Civil P. C. were served on the appellant before filing the suit. In those notices, it was claimed that Railway administration concerned must disclose the manner in which the consignment was dealt with during transit. When the suit was filed, this demand was reiterated in the plaint and again disclosure was sought for. During the proceedings, a notice was also served on the appellant requiring production of certain documents. Specific defence was raised on behalf of the appellant that the consignment was defectively packed and that such defective condition was noted in writing by the consignor's Agent on the forwarding note. It was, therefore, pleaded that the tins were old and used and were not tied to each other by rope and leaked as no dunnage was provided in between the tins. The damage is said to be the direct consequence of such defective packing. The allegation as to the negligence and misconduct in handling the consignment on the part of the Railway administration was denied. In para 8 of the written statement specific averment is as follows:

(2.) In this Court the second appeal was filed on 28th June, 1976 on a court-fee stamp of Rs. 5.00. The balance of the court-fee was paid subsequently on 9-71976 and this Court on recommendation made by the Taxing Officer certifying the delayed payment as bona fide, condoned the delay in payment of deficit court-fee by order dated 1-11-1976. Admittedly, this order condoning the delay under Section 149, Civil P. C. was passed ex parte without notice to and in absence of the respondent. Shri P. G. Pathak, learned counsel appearing for the respondent, therefore, urged that he has a right to challenge the condonation of delay in payment of deficit court-fee, Learned counsel submitted that the explanation offered by the appellant for delay in payment of court-fee far from satisfactory or bona fide and, therefore, the appeal should only be deemed to be filed on 9-7-1976 when the deficit court-fee was made good. Section 149, Civil P. C. is as follows:

(3.) In the present case, while seeking condonation of delay in payment of deficit court-fee under Section 149, Civil P. C by an application dated 9-7-1976 the appellant has stated that it is a public body and is subject to certain rules and formalities. The amount for payment of court-fee was not sent to the standing counsel in the High Court as the drawal of money form has to travel through different sections of the Railway Department before money could be actually drawn. The appeal was filed on the last day of limitation with a stamp of RS. 5 only. Thus, the sole reason assigned is the observance of certain formalities by a public body in the matter of withdrawal of necessary funds for payment of court-fee. The application is signed only by the counsel and is even supported by an affidavit. The Taxing Officer on these allegations certified the understamping as bona fide and the Court accepted the recommendation and condoned the delay, A Division Bench of this Court in Union of India v. Ibrahim Gulaba, 1965 MPLJ 572: (AIR 1966 Madh Pra 52) in somewhat similar circumstances observed that Rule 9 in Chapter II of the Madhya Pradesh High" Court Manual. 1960, provides that when the Taxing Officer certifies the under- stamping to be bona fide on an application duly made for the purpose, "the Court would normally extend time". In that case also, the Taxing Officer certified the delay in payment of deficit court-fees to be bona fide. It was observed that in absence of any special or exceptional circumstances the normal rule need not be departed from. Yet another Division Bench of this Court in State v. Mangilal, First Appeal No. 25 of 1965, decided on 16-10-1965 (Indore): 1966 Jab LJ (SN) 2, relying upon Jagat Ram v. Misar, AIR 1938 Lah 361 (FB), held that the discretion conferred on the Court by Section 149, Civil P. C. is normally excepted to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. It was observed that in Government cases some time is spent in obtaining sanction to draw out money for the purchase of stamps and the necessary papers have to be moved through more than one section/department. In the present case, the averments made in the application filed on 9-7-1976 under Section 149, Civil P. C, have not been controverted in writing and the objection was orally raised at the time of hearing of the appeal. The delay was condoned as far back as on 111-1976. The respondent entered appearance on 3-1-1977. For the long five years the delay condoned was not questioned. Under these circumstances, in my opinion, the order condoning the delay in payment of deficit court-fee on a recommendation made by the Taxing Officer need not be reviewed, I, accordingly, reject the objection raised as to the maintainability of this appeal as barred by time.