AMAR KAUR Vs. IQBAL SINGH

JUDGEMENT

(1.) THIS Regular Second Appeal was filed on the last date of limitation period with a court-fee of Rs. 29/ -. The amount was deficient by a sum of Rs. 3/- and this deficiency in the court-fee was made good when it was pointed out by the office about a fortnight later. The appellant has put in an application under Sections 149 and 151 of the Code of Civil Procedure for condoning the delay in paying the deficiency in the court-fee after the expiry of the period of limitation.

(2.) SHRI Gurbachan Singh, the learned counsel for the appellant, has relied upon Jagat Ram v. Misar Kharaiti Ram, AIR 1938 Lah 361 (FB) and Custodian of Evacuee Property, New Delhi v. Rameshwar Dayal, AIR 1968 Delhi 183 in this connection. It may appear that by a clerical error the amount of court-fee was wrongly typed as Rs. 29/- on the memo of appeal when the amount due was Rs. 32/ -. The correct court-fee amount is mentioned in the decree sheets of both the Courts below. Shri Gurbachan Singh argues that there could not have been any intention on the appellant's part to throw away the court-fee amount of Rs. 29/- in order to effect a saving of Rs. 3/- and that the mistake was of a bona fide character. If the definition of the word 'good faith' as contained in Clause (22) of Section 2 of General Clauses Act were to be kept in mind, the appellant may appear to have a good case. The word 'good faith' has, however, been defined in Section 2 (h) of the Limitation Act also and where the question is whether the period of limitation should be extended or not and whether the delay in making good the deficiency in court-fee should be condoned or not, it would be more appropriate to apply the definition given in the Limitation Act. According to this definition, nothing shall be deemed to be done in good faith which is not done with due care and attention. The clerk's mistake in relying on the typing error on the memo of appeal was not sufficient and appellant's counsel was supposed to check up the court-fee paid before filing the appeal. It cannot, therefore, be said that the appeal had been filed with a deficient court-fee stamp after taking proper care and caution. The counsel cannot take shelter behind the mistake of his clerk and thereby absolve himself of the duty of exercising care and caution expected of him. In this connection, the learned counsel for the respondent, Shri Sarin has relied upon Madhavarao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu, AIR 1958 SC 767. This ruling was followed by Hon'ble Mr. Justice Pandit in Hai Bhagwan v. Om Parkash, AIR 1969 Punj and Har 308. In paragraph 7 of the judgment, the Hon'ble Judges of the Supreme Court observed as under: The conclusion of the learned trial judge on this part of the case, is in these words: 'the plaintiff's mala fides are therefore not established and the period occupied in prosecuting the former suit must be excluded under Section 14 of the Limitation Act. ' The observations of the High Court are as follows: 'we do not see our way to accuse the plaintiff of want of good faith or any mala fides in the matter of the filing of the suit in the Subordinate Judge's Court at Miraj. There is nothing on the record to show that he was really guilty of want of good faith or non-prosecution of the suit with due diligence in the Court of the Subordinate Judge at Miraj. ' Both the courts below have viewed the controversy under Section 14 of the Limitation Act, as if it was for the defendant to show mala fides on the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in that court. In our opinion, both the courts below have misdirected themselves on this question. Though they do not say so in terms, they appear to have applied the definition of "good faith" as contained in the General Clauses Act, to the effect that "a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not. " But the Indian Limitation Act contains its own definition of good faith to the effect that "nothing shall be deemed to be done in good faith which is not done with due care and attention"- (Section 2 (7) ). We have, therefore, to see if the institution and prosecution of the suit in the Munsiff's court at Mirah, was done with due care and attention. We know that the plaint in the Tikoni suit filed by the same plaintiff in the same court, did contain a statement as to the value of the subject-matter, but it was conspicuous by its absence in the plaint in the suit as originally filed in the Munsiff's court at Miraj. All the facts alleged in the plaintiff's petition for the return of the plaint, were known to the plaintiff ever since the institution of the suit. Nothing fresh was discovered in 1940. On the other hand, we know definitely that the Tikoni suit had been dismissed by the trial court on merits. The suits were of an analogous character in the sense that the controversy was similar in both of them. "

(3.) IN the present case, it cannot be said that the appeal had been filed with deficient court-fee stamp after exercising due care and caution. The period of limitation cannot therefore be extended under Section 149 of the Code of Civil Procedure. The appeal is accordingly dismissed on the ground that it is time-barred. As the question of law involved is of importance, the appellant is allowed to file an appeal under Clause 10 of the Letters Patent. There is no order as to costs. Appeal dismissed.