VENKATARAMASASTRI Vs. VENKATASUBRAMANIA DIKSHITAR

JUDGEMENT

(1.) The plaintiff, who is the appellant in this Court, brought a suit on insufficient court-fee and he was granted a decree. The defect was not noticed during the course of the trial. In appeal to the Court of the Subordinate Judge of Vellore, he was called upon to pay the deficient court-fee under Section 12 of the Court-Fees Act and as he did not do so within the time allowed, Section 10(2) was applied and his suit dismissed. This second appeal has, therefore, been preferred, the plaintiff contending that Section 12 of the Court-Fees Act does not apply to his case.

(2.) The argument of the learned advocate for the plaintiff in this Court is that Section 12(2) only applies to cases where the plaintiff is the appellant. This sub-section runs: But whenever any such suit comes before a Court of Appeal...if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided

(3.) If this sub-section had ended with the word "decided", I am quite sure there would never have been any doubt at all that it applies to all the parties to the appeal. Its provisions are very wide and it definitely refers to the party by whom the fee has been paid. If this sub- section has been intended to apply only to a case where the deficiency was by the appellant, it would not have been necessary to say "the party by whom such fee has been paid." The simple word "appellant" would have been sufficient. A doubt has however arisen because of the last few words of the sub-section "and the provisions of Section 10, para. 2 shall apply". Section 10, para. 2 applies only to suits. It is argued that if the word "appeal" replaces the word "suit" in Section 10(2), then the appeal would have to be dismissed, which would work a grave injustice on the appellant when the respondent is the defaulter. That was the reasoning that impressed the learned Judge who decided Narain Singh V/s. Chaturbhuj Singh (1898) I.L.R. 20 All. 362. The matter came before a Full Bench of the Allahabad High Court in Mohan Lal v. Nand Kishore (1905) I.L.R. 28 All. 270 (F.B.), where the argument of Narain Singh v. Chaturbhuj Singh (1898) I.L.R. 20 All. 362 was adopted. It was therefore held that Section 12 (2) could not apply to cases where the plaintiff was not the appellant and that there was therefore no provision in the Court-Fees Act for the recovery of deficient court-fee from a plaintiff-respondent. What a Court could do, the learned Judges said, was to suspend the execution of the decree until the deficit court-fee was paid. The difficulty of that course is that it would be in the interests of a plaintiff who has made default in the payment of proper court- fee to await the result of the appeal. If he was unsuccessful in the appeal, then obviously he would certainly not pay court-fee. This difficulty was seen in Baijnath V/s. Dhani Ram (1929) I.L.R. 51 Al. 886 and the learned Judges there held that the course suggested in the earlier Allahabad cases was not the only one. If the plaintiff did not pay the deficit court-fee when called upon to do so by the appellate Court, a contempt of Court was committed and the appellate Court could therefore refuse to hear the respondent or his advocate and dispose of the appeal in his absence.