Full Judgment Text
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PETITIONER:
MOHAMMAD MAHIBULLA AND ANR.
Vs.
RESPONDENT:
SETH CHAMAN LAL (DEAD) BY LRS. AND ORS.
DATE OF JUDGMENT18/09/1991
BENCH:
MISRA, RANGNATH (CJ)
BENCH:
MISRA, RANGNATH (CJ)
AHMADI, A.M. (J)
SAWANT, P.B.
CITATION:
1993 AIR 1241 1991 SCR Supl. (1) 179
1991 SCC (4) 529 JT 1991 (4) 1
1991 SCALE (2)661
ACT:
Code of Civil Procedure, 1908--Sections 107 (2),149,
Order VII-Proper court-fees not paid on the memorandum of
appeal-Duty of appellate Court indicated--Costs to respond-
ents for appellants negligence.
HEADNOTE:
The plaintiff-Wakf Board’s suit for declaration of the
right to the passage and possession thereof having been
dismissed by the Trial Court, a title appeal was filed
before the District Judge.
A Court -fee of Rs. 15 was paid on the plaint by the
Wakf Board by an exemption notification. On its memorandum
of appeal, the plaintiff had paid the same amount of court
fee.
Respondents asked for dismissal of the memorandum of
appeal as it had not been sufficiently stamped.
The Additional District Judge dismissed the memorandum
of appeal.
The High Court did not interfere, when plaintiff took
the matter before it.
Hence this appeal by special leave by the plaintiff
contending that the learned Additional District Judge in-
stead of dismissing the memorandum of appeal, an opportunity
should have been given and the appellant should have been
called upon to make good the deficiency.
Allowing the appeal, this Court,
HELD: 1. When the lower Appellate Court came to hold
that the memorandum of appeal had not been sufficiently
stamped, an opportunity should have been given by the Court
to the appellant to make good the balance court-fee within a
time to be indicated and if there was failure to comply with
the direction of the Court, the memorandum of appeal could
180
have been dismissed. This opportunity having not been given,
the dismissal of the appeal was not appropriate. [181F-G]
2. This is a case of negligence on the part of the
appellants and,therefore, the respondents who have been
dragged in these proceedings for about 10 years should be
compensated, by way of costs of Rs. 1,000. [182 B]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1290 of
1979.
From the Judgment and Order dated 16.8.1977 of the
Punjab and Haryana High Court in Regular Second Appeal No.
1001 of 1966.
Dhruv Mehta and S.K. Mehta (NP) for the Appellants.
J.D. Jain for the Respondent.
The following Order of the Court was delivered:
This is an appeal by special leave by the plaintiff-
Wakf Board. Its suit for declaration of the right to the
passage and possession thereof having been dismissed by the
Trial Court, a title appeal was filed before the District
Judge of Karnal. By an exemption notification on the plaint
in a suit of this type filed by the Wakf Board, court-fee of
Rs. 15 is payable. On its memorandum of appeal, the plain-
tiff had paid the same amount of court-fee also. Objection
was raised to sufficiency of court-fee and respondents asked
for dismissal of the memorandum of appeal as it had not been
sufficiently stamped. As a fact, while court fee of Rs. 638
was payable, court fee of Rs. 15 had been paid. This matter
was preliminarily considered by the appellate court and by
the order dated 5.5.1966 the Additional District Judge
sustained the objection and directed the memorandum of
appeal to be dismissed. The High Court did not interfere
when plaintiff took the matter before it. Ultimately special
leave had been granted by this court and at the time of
grant of leave, the following order was made:
"As the petitioner is willing to pay deficit
court fee on the memo of appeal before the
District Judge without prejudice, we direct
the issue of show cause notice to the other
side?
It is unfortunate that even when that order was made on
27.11.1978 this matter is coming for final disposal almost
13 years thereafter.
The plea raised by the appellant before the learned
Additional District Judge that the appeal was a continuation
of the suit and the same
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Court fee as was payable on the plaint was appropriate in
appeal had been rightly negatived. At the trial stage, there
was an exemption and since it was specifically confined to
the trial stage there was no ground to claim the benefit at
the appellate stage also. But when the learned Additional
District Judge came to hold that the memorandum of appeal
had not been sufficiently stamped, instead of outright
dismissing the memorandum of appeal, an opportunity should
have been given and the appellant should have been called
upon to make good the deficiency. Under the provisions of
Order VII of the Code of Civil Procedure which applies to
suits, when the plaint does not bear appropriate court-fee
this is the requirement of the law. Section 107 (2) of the
Code of Civil Procedure provides:
"(2) Subject as aforesaid, the Appellate Court
shall have the same powers and shall perform
as nearly as may be the same duties as are
conferred and imposed by this Code on Courts
of original jurisdiction in respect of suits
instituted therein."
Section 149 of the Code of Civil Procedure
provides:
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"Where the whole or any part of any fee pre-
scribed 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 discre-
tion, 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."
Reading these two provisions together and keeping fair-
ness of procedure in view, we are inclined to agree with the
counsel for the appellant that when the lower Appellate
Court came to hold that the memorandum of appeal had not
been sufficiently stamped, an opportunity should have been
given by the Court to the appellant to make good the balance
courtfee within a time to be indicated and if there was
failure to comply with the direction of the Court the memo-
randum of appeal could have been dismissed. This opportunity
having not been given, we are of the view that the dismissal
of the appeal was not appropriate.
Counsel for the appellant has undertaken to pay the
deficit court fee as was payable on the memorandum of appeal
when the appeal was filed within four weeks hence. In case
the amount of court-fee is so paid, the
182
rifle appeal shah be revived to be dealt with in accordance
with law. If there be failure to do so, the order of dis-
missal shah stand sustained.
We are inclined to agree with counsel for the respond-
ents that this is a case of negligence on the part of the
appellants and, therefore, the respondents who have been
dragged in these proceedings for about 10 years should be
compensated. We direct that the restoration of the appeal in
the appellate court on payment of appropriate court-fee
shall be subject to the further condition of payment by way
of costs of Rs. 1,000.
The appeal is disposed of accordingly.
V.P.R. Appeal allowed.
183