STATE OF PUNJAB Vs. NAND KISHORE

JUDGEMENT

(1.) THE only question calling for decision in this application is whether on the facts and in the circumstances of this case we should or we should not exercise our discretion under Section 149 of the Code of Civil Procedure to allow the appellant extension of time for making up the court-fees payable on the petition of appeal in this case (which has already been made up ).

(2.) ON 14-10-1964 the Court of Shri M. L. Mirchia. Sub Judge 1st Class, Patiala passed a decree in favour of Pt. Nand Kishore, respondent against the State of punjab, the appellant before us, for a declaration to the effect that the compulsory retirement of the respondent was illegal, void and unconstitutional and for payment of Rs. 13,649. 08 np. with interest at the rate of 6 per cent per annum on that amount from 10-6-1964 till realisation. On 14-1-1965 Regular First Appeal no. 156 of 1965 was filed by the State of Punjab against the above-said decree of the trial Court. A sum of Rs. 1,474 was paid in court-fees on the appeal. This was ad valorem fee payable on the principal amount decreed plus the subsequent interest accrued due thereon till the filing of the appeal. Rs. 19. 50 were payable on account of court-fees on the relief for declaration which had been granted to the respondent by the trial Court and which was being questioned in the appeal in this Court. No court-fee was paid on this account. The petition of regular first appeal was returned by the Registry of this court to the appellant under endorsement dated 18-1-1965. Two objections were raised out of which the material one is the first objection which was in the following words :--"memo of appeal is insufficiently stamped. Court-fee on claim of declaration should also be paid. "

(3.) THE petition of appeal appears to have been refiled after making up the court-fees on 17-2-1965. 23 days have been taken in this case for obtaining the requisite certified copies. After excluding that period the petition of appeal had to be filed in this Court by the 6th of February. 1965. The petition of appeal had originally been returned to be refiled within a week But the Registry accepted the same without any objection when refiled on 17-2-1965. If proper court-fees had been paid on the petition of appeal in the first instance, no difficulty would have arisen. Deficiency in court-fees having been made up, the appeal was again returned to the appellant under orders of the Deputy Registrar dated 19-2 1965 with the following endorsement:--" It should be explained how this appeal is within limitation as deficiency in court-fee has been made good after the period of limitation, if not an application for condonation of delay may be filed if so advised.