LAND ACQUISITION OFFICER CUM COLLECTOR Vs. SAMBARU BARIHA

JUDGEMENT

(1.) The State of Orissa represented through the Land Acquisition Officer-cum-Collector, Kalahandi has filed the First Appeal (F.A. No. 74/93) on 19-4-1993 with a court-fee of Re. 1/- only as against Rs. 9584 payable on the memorandum of appeal. An application under Section 149 of the Code of Civil Procedure was filed on the same day. This petition, registered as Misc. Case No. 275 of 1993, came up before a learned single Judge on 10-5-1993. The learned Judge having found that not a single appeal had been filed by the State paying the required court-fee and the usual ground taken for not doing so being that the amount required for purchasing court-fee has not been received from the concerned authority in time felt that some guidelines for extension of time as permitted by Section 149 of the Code should be laid down since this Section is an exception to Section 4 of the Court-fees Act. The learned Judge also felt that the guidelines should be authoritatively laid down by a larger Bench and referred the following questions for answer by the Division Bench:-

(2.) It may first be stated with respect that the learned single Judge is right in his observation that Section 149 of the Code is an exception to the general rule of paying courtfee at the time of filing of a document as enjoined by Section 4 of the Court-fees Act, 1875. It is apparent that an exception cannot be made a rule. Any other view would amount to amending Section 149 of the Code, because, instead of discretion resting with the Court in the matter of allowing payment of the deficit court-fee, it would be open to a litigant to claim this benefit almost as a matter of right, whereas Section 149 gives power to grant time on the Court being satisfied on a case being made out for the same.

(3.) In this connection, reference may be made to Mannan Lal v. Chhotka Biwi, AIR 1971 SC 1374, in which it has been held that Section 149 of the Code militates the rigour of Section 4 of the Court-fees Act and it is for the Court to harmonise the aforesaid two provisions by reading Section 149 of the Code as a proviso to Section 4 of the Court-fees Act. This being the legal position it has to be remembered that Section 149 is meant to take care of the real difficulty of a litigant in being not able to pay the required court-fee in time. An inherent and implied prohibition in liberalising the provision of Section 149 may thus be read in the Section.