GOPENDRA KUMAR PORYA Vs. DEBENDRA NATH PORYA

JUDGEMENT

(1.) An interesting question of procedure relating to the filing of plaints and memoranda of appeals in civil courts with insufficient Court fees has arisen in this Rule. The question has arisen under the following circumstances: The three Petitioners of this Rule who were Plaintiffs in a title suit obtained a decree against the Defendants opposite parties. Some of the Defendants of the trial court, namely, Defendants Nos. 3 and 4 filed an appeal in the court of the District Judge, Midnapore, on November 17, 1955. The requisite Court fee for the memorandum of appeal was Rs. 20-12. The memorandum of appeal was filed with a token Court fee of Rs. 1. Time was allowed till November 26, 1955, for making good the deficit Court fee. There was a prayer for extension of time on behalf of the Appellant on that date and the date was extended to December 8, 1955, on which date the deficit Court fee was filed. An order was made on that date for issuing notice of appeal upon the Respondents. It may be mentioned here that the memorandum of appeal was ordered to be registered on the very day of its presentation although the Court fees paid on the memorandum were insufficient. After having been served with notice of appeal, the Plaintiffs Petitioners obtained the present Rule. Their contention is that the memorandum of appeal was presented with a nominal Court fee with full knowledge of the Appellants that the memorandum was insufficiently stamped and that the District Judge in whose Court the appeal was filed acted arbitrarily and without jurisdiction in granting time till November 26, 1955, for making good the deficit Court fee.

(2.) Mr. Roy Choudhury appearing on behalf of the Plaintiffs Petitioners contended that the learned District Judge passed the order on the day of presentation of the appeal, namely, on November 17, 1955, for putting in the deficit Court fee on November 26, 1955, without exercising any judicial discretion and as time was thus allowed arbitrarily, it must be held that a material irregularity was committed by the lower appellate court in the exercise of its jurisdiction and its order directing regis tration of the appeal should be set aside and the memorandum of appeal should be rejected as it did not bear necessary Court fees within the period of limitation for presentation of the appeal.

(3.) In the above connection Mr. Roy Choudhury drew my attention to Section 149 of the Code of Civil Procedure which runs as follows: