MT CHHOTI Vs. HAR DAYAL SINGH

JUDGEMENT

(1.) A preliminary objection has been raised by the learned advocate for the respondent that no valid appeal was filed within limitation. The facts on which the preliminary objection is based are as follows: The last day on which the appeal should have been filed was 12 February 1930. The appeal was presented on that day but on a court-fee stamp of Rs. 10 only. It is not disputed that ad valorm court-fee should have been paid on the memorandum of appeal. The office reported on 18 February 1930 that there was a deficiency in the court-fee to the extent of Rupees 260. The same was paid next day, i. e., on 19 February 1930. A learned Single Judge of this Court, before whom the office report was laid for orders, directed, on 21 February 1930: "Let the deficiency be received."

(2.) The appeal was thenceforward treated as preferred on a properly stamped memorandum of appeal. It was laid before a Bench of this Court under Order 41, Rule 11, Civil P.C. and was admitted on 31 March 1930. The translation and printing of the record were taken in hand and after the preparation of the paper book the case has been put up for hearing before us today. The learned advocate for respondent has pointed out that an appeal filed without payment of the requisite court-fee can be rejected by the Court. It is contended that, in a case in which a nominal court-fee is deliberately paid without a valid excuse for non- payment of the full court-fee, the Court should not, in the exercise of its discretion, subsequently allow the appellant to make good the deficiency. Reliance is-placed on Brijbhukan V/s. Tota Ram in which a learned Judge of this Court has held, that the Court has full power to refuse to accept a memorandum of appeal when it has the endorsement of the stamp reporter that the amount of court-fee paid is not sufficient. We do not doubt the correctness of this proposition. It was open to the learned Single Judge, who passed the order dated 21 February 1930, to reject the memorandum of appeal, the same not having been filed on payment of the full court-fee. There is nothing in the case to which reference has already been made to warrant the further proposition that the Court, before whom an insufficiently stamped appeal is filed, has no power to accept it on the deficiency being made good. Section 28, Court-fees Act, provides that: No document which ought to bear a stamp under this Act shall be of any validity unless and until it is properly stamped. But, if any such document is through mistake or inadvertence received, filed, or used in any Court or office without being properly stamped, the presiding Judge... may, if he thinks fit, order that such document be stamped as he may direct; and, on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as it had been properly stamped in the first instance.

(3.) It was held by a Full Bench of this Court, as far back as 1890, in Balkaran Rai V/s. Gobind Nath (1890) 12 All 129 that a memorandum of appeal is of no validity if it is not properly stamped. The result was that where the deficiency was made good after the expiry of the period of limitation, the appeal was barred by limitation, unless Section 5, Limitation Act, could be applied. To soften the rigour of this rule Act 4 of 1892 added Section 582-A, Civil P.C., of 1882, which declared that a memorandum of appeal presented within the proper period of limitation but written upon paper insufficiently stamped by "mistake as to the amount of the requisite stamp" shall be valid if the-deficiency be made good within a time which the Court may grant. Section 149, Civil Procedure Code, of 1908, has considerably enlarged the power of the Court. It has discretion to allow the deficiency in court- fee being made-good even where such deficiency was not due to mistake. The section declares that: 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.