THE HIMACHAL PRADESH HORTICULTURAL PRODUCE AND MARKETING AND PROCESSING CORPORATION LTD. Vs. BALI RAM AND ANR.

JUDGEMENT

(1.) This order will dispose of Civil Revisions Nos. 172,175 and 176 of 1981, since a common question of law has arisen.

(2.) The Himachal Pradesh Horticultural Produce and Marketing and Processing Corporation Ltd., Simla, the present Petitioner filed civil suits in the Court of Senior Sub -Judge, Simla. An application under Sec. 149 of the Code of Civil Procedure was also made for seeking time to affix the requisite Court fee on the plaint. It was stated that the Petitioner had failed to obtain the requisite Court fee at that late hour of the day. Since it was the last day of the limitation, the Petitioner decided to file the plaint without affixing the requisite Court fee. When the application under Sec. 149 of the Code of Civil Procedure came up before the learned Senior Sub -Judge, he dismissed it. The reason given was this. According to the Senior Sub -Judge, the deficiency would have resulted if at least some Court fee had been paid by the Petitioner. As no Court fee had been affixed on the plaint, there was no question of making up deficiency in the Court fee and so the said Sec. would not be applicable. The learned Senior Sub -Judge also found that in the application the Petitioner had asked for grant of time to affix the requisite Court fee and so it was not an application for making up deficiency in the Court fee.

(3.) I am afraid that highly technical view of the matter has been taken by the learned Senior Sub -Judge. Whether the Petitioner had asked for extension of time and should have asked for making up of deficiency in the Court fee, should not have made any difference. The purport of the application was to makeup deficiency irrespective of the phraseology in which the Petition was drafted. Moreover, it cannot be said that where a person does not affix any Court fee because of the circumstances in which a plaint has to be filed, he cannot ask for making up deficiency. To me the matter is simple. The requisite Court fee has not been paid by the Plaintiff -Petitioner. This would include nonpayment of any Court fee. The rest should be a question of making up deficiency. The Petitioner had laid the foundation for his not being in a position to buy the requisite Court fee. The Court fee which was required to be paid in the case was indeed which the Petitioner could get only from the Treasury and no vendor of the Court fee stamps could have sold the Court fee of the requisite amount. I also find that on the application made under Sec. 149 of the Code of Civil Procedure, the Petitioner had affixed a Court fee stamp of Rs. 1.25. In other words, whatever Court fee was available with him he used it on the application. The trial Court was making a material irregularity in not allowing the Petitioner to make up the deficiency.