OM NARAYANA Vs. RISALDAR GANPAT SINGH

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgment and decree of the appellate court dismissing the appeal of the defendant-appellants which was filed against the ex-parte judgment and decree of the trial Court.

(2.) THE facts of the case which are not in dispute may be noticed; Risaldar Ganpat Singh plaintiff respondent filed a suit for possession by way redemption before the trial Court in which ex-parte decree was passed against the defendant-appellants. Instead of filing an application for setting aside ex-parte judgment and decree of the trial court before the trial court itself, an appeal was filed before the first appellate court with a court fee stamp of Rs. 25/ -. In the appeal an objection was taken by the plaintiff-respondent that the appellants could not file memorandum of appeal with a court fee of Rs. 25/- and that the appropriate court fee of Rs. 2245/- should have been affixed on the memorandum of appeal The counsel for the defendant appellants did make a prayer before the first appellate court that they be granted permission to make up the deficiency in court fee but the appellate court did not grant any permission by observing that the appeal has become barred by time. No application, according to the appellate court for condonation of delay was filed.

(3.) AFTER hearing the learned counsel for the parties, I am of the opinion that the appellate court by invoking the provisions of Section 149 C P C. could have granted the time for making up the deficiency in the court fee Since the appellate court has failed to exercise the jurisdiction which was vested in it, this court in second appeal is in- clined to grant the permission to the appellants to make up the deficiency in the court fee. Section 149 C P. C. envisages that the court may in its discretion at any stage allow a person to make payment of court fee and if such payment is made, such fee will be deemed to have been paid in the first instance. The words 'at any stage' gives ample power to a court to grant permission of payment of court fee at any stage The expiry of time is no obstacle in the way of the court as regards the grant of time I, therefore, while exercising my discretion grant two months' time to the appellants to make up the deficiency in court fee.