1970 (4) TMI 157 - SC - Indian Laws

Summary

Issues Involved:

1. Maintainability of Special Appeal No. 880 of 1962
2. Compliance with U.P. Act XIV of 1962
3. Validity of memorandum of appeal with insufficient court-fee
4. Application of Court Fees Act and Code of Civil Procedure
5. Retrospective validation of appeal upon payment of deficient court-fee

Issue-Wise Detailed Analysis:

1. Maintainability of Special Appeal No. 880 of 1962:

The primary issue was whether Special Appeal No. 880 of 1962 was maintainable under the provisions of the U.P. Act XIV of 1962, which abolished such appeals. The appeal was presented on 9th November 1962, and the court-fee deficiency was made good on 20th December 1962. The court had to determine if the appeal could be considered pending on 12th November 1962, the date immediately preceding the enforcement of the Act.

2. Compliance with U.P. Act XIV of 1962:

Section 3 of the U.P. Act XIV of 1962 states that no appeal shall lie to the High Court from a judgment of one Judge in exercise of appellate jurisdiction, except those pending immediately before the enforcement of the Act. The court had to interpret whether the appeal, with a deficiency in court-fee rectified after the enforcement date, could be deemed pending before the Act's enforcement.

3. Validity of Memorandum of Appeal with Insufficient Court-Fee:

The court examined the procedural compliance under Order 41 rule 1 of the Code of Civil Procedure, which mandates that every appeal must be accompanied by the requisite court-fee. The memorandum of appeal initially had insufficient court-fee, which was later rectified. The court had to decide if the appeal could be considered valid from the date of its initial presentation despite the deficiency.

4. Application of Court Fees Act and Code of Civil Procedure:

The Court Fees Act, 1870, and its Section 4 stipulate that no document chargeable with fees shall be received unless properly stamped. However, Section 149 of the Code of Civil Procedure allows the court to permit the payment of deficient court-fee at any stage, giving the document the same effect as if it had been properly stamped initially. The court had to harmonize these provisions to determine the appeal's validity.

5. Retrospective Validation of Appeal upon Payment of Deficient Court-Fee:

The court concluded that the provisions of the Court Fees Act and the Code of Civil Procedure should be read together. Section 149 of the Code mitigates the rigour of Section 4 of the Court Fees Act, allowing the deficiency to be made good retrospectively. Thus, the appeal must be treated as pending from the date of its initial presentation, not from the date the deficiency was rectified.

Conclusion:

The court held that the appeal was indeed pending from 9th November 1962, and thus unaffected by the U.P. Act XIV of 1962. The deficiency in court-fee, once rectified, validated the appeal retrospectively. The appeal was allowed, and the High Court was directed to hear the Special Appeal.

Significant Phrases:

- "The memorandum of appeal must be treated as one filed within the period fixed by the Limitation Act."
- "Section 149 of the Code expressly provides that the document is to have validity with retrospective effect as if the deficiency had been made good in the first instance."
- "The appeal must be treated as pending from the date of presentation not only for the purpose of limitation but also for the purpose of sufficiency as to court-fee under Section 149 of the Code."

Judgment:

The appeal was allowed with a direction that the High Court should hear the Special Appeal instituted on 9th November 1962. The costs of this appeal will abide by the decision of the Special Appeal.