BAIJNATH PRASAD SINGH Vs. UMESHWAR SINGH

JUDGEMENT

(1.) This is a first appeal from a decision of the Subordinate Judge of Gaya and is directed to be heard by a Special Bench because of a point of importance arising in connection with the levying of the court-fee on the plaint. The suit was brought by the plaintiff on a mortgage bond dated June 8, 1918, the claim being for Rs. 6,549-8-0 upon which the court-fee, as is admitted, would be a sum of Rs. 502. The suit was filed on the last day of limitation, having regard to extensions of time which the plaintiff was entitled to by reason of the occurrence of certain holidays. It was filed on June 1, 1931 with a court fee of Rs. 11. The plaintiff petitioned, when filing his plaint, that he be allowed time to file the deficiency on the court- fee stamp which deficiency amounted to Rs. 491-8 0 and he undertook to pay it on June 29. On June 29, the plaintiff had not "complied with the order for the payment &f the balance. The Subordinate Judge, who was in charge of the matter at the time, for some reason took an extremely lenient view of the failure on the part of the plaintiff to pay up the deficit. He directed that the Pleader was to comply with the order for payment by July 3, and on the same day the plaintiff paid up a further Rs. 50 and asked for one month's time. The order by the Subordinate Judge was that the matter should be put up on July 3i as he had already directed When the 3 July came, the Judge allowed a further extension until July 20. On July 20, the plaintiff was again not ready and the learned Subordinate Judge allowed him until the 31 of the same month. On the 31st, the plaintiff paid a further Rs. 30 and the Judge thereupon allowed him till August 10, to pay up the balance. When August 10, in his turn came, the plaintiff asked for time until to-morrow undertaking to pay on the following day Rs. 295 andthe Judge allowed him until the following day. On the next day the plaintiff paid up the Rs. 295 and prayed for two weeks further time to deposit the balance, after the payments I have mentioned, which amounted to Rs. 116-8-0. On August 25, further excuses were advanced owing to an alleged difficulty in the purchase of stamps. The Judge allowed two further days time, directing payment of the deficit on August 27, and it, was not until August 27, that the plaintiff paid up the deficit of Rs. 116

(2.) Now the Court has a double function: it has its judicial function to hear and decide cases; it also acts as a collector of revenue, and its duty is to collect the revenue for the Government in the shape of court-fees according to the statutes provided, and in exercising that function, it has a discretion granted it to allow time. In the exercise of both of these functions Subordinate Courts are under the direction of the High Court. There is no doubt whatever that in this particular case the learned Judge, in exercising his discretion to grant time for the payment of the deficit court-fee, acted in a most undesirable manner and that undesirable exercise of his discretion undoubtedly prejudiced the defendant, although the defendant was no proper party to questions of revenue as between the plaintiff and the Government. It would have been quite possible for the defendant, who was injured by this repeated and unnecessary delay in the levying of the court-fee, to come to this Court and complain that in the exercise of its function as a revenue collector the Court had acted, in the matter prejudicially to the defendant and that the discretion vested in. the Court to grant adjournments had been improperly exercised. Had such an application been made, no doubt the Court would have, by virtue of its general powers of superintendence of lower Courts, checked the action of the Subordinate Judge. The suit was, after the payment of the deficit, heard on its merits and was decided against the defendant and the action of the Judge in the wrongful exercise of his discretion in permitting extensions of time for the payment of the court-fee is not a matter which concerns in any way the merits of the dispute in the suit which he had to try. It is contended, however, by the defendant that the plaint as originally filed without an adequate court-fee of Rs. 502 was no plaint at all, inasmuch as the original plaint was filed on the last day permitted by the Limitation Act after all the extensions had been granted. It is contended that when the deficit on the court-fee had actually been paid and the plaint had become, on the contention of the defendant a regular plaint, the period of limitation for the bringing of the suit had expired.

(3.) I am unaware of any provision which states that a plaint must be a plaint on which the whole of the leviable duty has been paid and that if the whole of the leviable duty has not been paid, the plaint is as though it had not been lodged at all. The argument is based in the main upon Section 6, Court Fees Act, which states: ...no document of any of the kinds specified as chargeable in Schedule 1 or Schedule 2 to this Act annexed shall be filed, exhibited or recorded in any Court of justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid the schedule court-fee. The Court Fees Act was passed in 1870 and Section 149, Civil Procedure Code, which was newly added in 1908. expressly provides: 149. 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.