MAHABIR RAM Vs. KAPILDEO PATHAK

JUDGEMENT

(1.) Plaintiffs are the appellants. They have appealed against the order dated 12-4-1950 of Mr. Abanidhar Chatterjee, District Judge of Gaya, rejecting their memorandum of appeal for non-payment of court-fee within the period of limitation.

(2.) The last date for filing the appeal before tha learned District Judge was 28-3-1950. The appeal, however, was filed by the plaintiffs on 23-3-1950, on which date the appeal was registered, and the office was asked to report by 30-3-1950. On 30-3-1950 the office reported that the appeal was not properly stamped, inasmuch as a deficit court fee of Rs. 175/5/- should be paid on it. On that date the appellants put in petition for time to file the deficit court-fee. On this petition the court of appeal below passed an order that as the period of limitation had already expired the case should be put up on 11-4-50 for disposal. The deficit court-fee of Rs. 175/5/- was filed on 4-4-1950, before the date fixed in the appeal. On 11-4-1950 the appellants put in a petition before the court of appeal below praying to accept the court-fee paid by them. On this petition the court of appeal below ordered the case to be put on 12-4-1950 lor hearing on the point of limitation. On 12-4-1950 the court below held that there had been deliberate laches on the part of the appellants in not filing the court-fee within the period of limitation, and as it did not consider it to be a fit case for extending the period of limitation even under Section 5 of the Limitation Act, the court-fee paid could not be accepted, and, therefore, the prayer of the appellants for accepting the court-fee was rejected, and the memorandum of appeal was rejected for non-payment of court-fee. Against this order the appellants have come up in second appeal.

(3.) Mr. L. M. Sharma, appearing for the appellants, has contended that the court of appeal below was bound to give some time in the first instance to pay the deficit court-fee, and, therefore, the learned District Judge had no jurisdiction to reject the memorandum of appeal. He has relied on certain decisions of this Court. By virtue of Clause (2) of Section 107 of the Code of Civil Procedure, Order 7, Rule 11, applies to appeals also. Order 7, Rule 11 (c), provides that where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so, the plaint shall be rejected. Section 149 of the Code gives power to the Court to allow the person, by whom court-fee is payable, to make up the deficiency of court-fees. Section 149 provides that where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part as the case may be, of such court-fee; and upon such payment the document in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. Order 7, Section 11, therefore, makes it compulsory for the Court before rejecting the plaint to give some time to the plaintiff to make up the deficiency, however short that may be, and the Court cannot straightway reject the plaint without giving such time. The provisions of Order 7, Rule 11, are applicable to appeals also, as I have already stated, and that being so, where the memorandum of appeal is insufficiently stamped, the Court must afford the appellant an opportunity of making good the deficiency of the court-fee payable on the memorandum of appeal. It is, therefore, clear that a memorandum of appeal not sufficiently stamped cannot be rejected summarily on that ground, unless an opportunity is given to the appellant to explain, or to make good the deficiency within the stated time see -- 'Baijnath Prasad Singh v. Umeshwar Singh', AIR 1937 Pat 550 : ILR 16 Pat 600 (SB) (A); -- 'Bahuria Ramsawari Kuer v. Dulhin Motiraj Kuer', AIR 1939 Pat 83 : ILR 17 Pat 687 (B) ; -- 'Sarjug Prasad Sahu v. Surendrapat Tewari', AIR 1939 Pat 137 (C) : and -- 'Ramgati Singh v. Shitab Singh', AIR 1939 Pat 432 (D).