TMI Blog1970 (4) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ary contained in clause ten of the Letters Patent of Her Majesty, dated the 17th March 1866 read with Clause 17 of the U.P. High Courts' (Amal- gamation) Order, 1948, or in any law not with standing. (2) Notwithstanding anything contained in sub-section (1) all appeals pending before the High Court on the date immediately preceding the date of enforcement of this Act shall continue to lie and be heard and disposed of as heretobefore, as if this Act had not been brought into force. The memorandum of appeal in Special Appeal No. 880 of 1962 was presented in the High Court on 9th November, 1962. There was some doubt as to whether the court-fee paid in respect of the memorandum at the date of its presentment was sufficient. Ultimately however a Bench of the High Court directed the payment of additional court-fee and on that being done the memorandum was accepted and registered in January 1963. The question before us is, whether there was an appeal pending before the High Court on 12th November 1962 i.e. the date immediately preceding the date of enforcement of the above U.P. Act. It will not be out of place to set forth a short history of the litigation culminating in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent at the foot of the said report raising objections thereto. The Joint Registrar made a note on 9th November 1962 reading: Without going through the papers the question of court-fees cannot be decided forthwith. Let it be taken as presented to-day. The order sheet shows that In compliance with the Registrar's order dated 11th December 1962 an objection filed by counsel for, the appellant was put up with the Stain Reporter's Report. On 20th December 1962 the Taxing Officer made a note that the deficiency, of ₹ 425/- had been made good on that date by the appellant and that counsel expressed his desire not to press the objection raised earlier. The Taxing' Officer directed that the matter be placed before the Court for orders as to the acceptance of stamps to make good the deficiency and for amendment of the valuation of the Special Appeal. The matter appeared on the board of a Division Bench of the High Court on 31st December, 1962 when it was adjourned till 3rd January 1963. On the last mentioned date the Bench allowed the amendment of the valuation of the appeal and directed the admission of the appeal and issue of notices. On the matter appearing befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the grounds decided against him and further to take any cross-objection to the decree which he could have taken by way of appeal provided he files such objection in the appellate court in- the manner laid down. Under sub-r.(2) such cross-objection has to be put up in the form of a memorandum. It is necessary to note the relevant provisions of the Rules of the High Court Allahabad High Court made in exercise of the powers conferred by Art.225 of the Constitution of India and all other powers enabling the court in that behalf with regard to the institution of appeals generally and also Special Appeals. In Chapter 1 rule 3 a Special Appeal is defined as an appeal from the judgment of one Judge. Omitting the words which are not relevant, rule 5 of Chapter VIII. provides An appeal shall lie to the Court from the judgment..... of one Judge made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendency of the Court, where the Judge who passed the judgment declares that the case is a fit one for- appeal. Chapter XI deals in general with the presentation of appeals and app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the necessary documents. Under sub-r. (2) : If the required documents are not supplied or the defects are not removed within the time allowed by the Judge or the Registrar, as the case may be, the application or memorandum of appeal shall be- listed for rejection before the Court. Rule 1 of Chapter XXXVII lays down that a separate register of institutions in the prescribed form has to be kept for each of the classes of cases mentioned therein. The 14th item in the list is Special Appeals . Under this rule cases must be, entered in the register according to the date of admission and no defective case should be entered therein. Under r. 3 of this Chapter a register in the prescribed form has to be maintained of all defective cases under several classes mentioned in rule 1 including Special Appeals. Such cases have to be entered in the register according to the date of presentation and a record kept of the steps taken from time to time to remove the defect. As soon as the defect has been removed and the case admitted, it has to be entered in the appropriate register of institutions. The recital of facts given above show that the rules of the High Court were folowed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of making the deficiency good. Even where limitation is about to expire and the time is too short to enable the appellant to make good the deficiency the court may allow the litigant time for the purpose. This shows that the court can keep on its file a memorandum of appeal although insufficiently stamped and the court will ordinarily allow an opportunity to the appellant to make good the deficiency and will not throw it out of hand. The Court Fees Act however lays an embargo on the court from receiving any document including a memorandum of appeal if it is not properly stamped. this provision of law was strictly construed in the case of Balkaran Rai v. Gobind Nath Tiwari(1) where the Allahabad High Court took the view that where a memorandum of appeal was insufficiently stamps when tendered was subsequently stamped sufficiently, the affixing %of the full stamps would not have a retrospective effect so as to validate the original presentation unless it has been done by order made under the second paragraph of s. 28 of the Court Fees Act. In that case the court allowed the Preliminary objection that as the making good of the deficiency had taken peace after the period of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the other. Apart from the decisions bearing on the point, there can in our opinion, be no doubt that s.4 of the Court Fees Act is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonise the sets of provisions which can only be done by reading s. 149 as a proviso to s. 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it. If the deficiency is made good no possible objection can be raised on the ground of the bar of limitation : the memorandum of appeal must be treated as one filed within the period fixed by the Limitation Act subject to any 12sup(Cl)/70-3 express provision to the contrary in that Act and the appeal must be treated as pending from the date when the memorandum of appeal was presented in court. In our view it 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 s. 149 of the Code. If such a construction be accepted, the bar of s. 3 of the Abolition of Letters Patent Appeals Act of 1962 would not operate in the instant case. In the case of Gavarnga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt-fee at ₹ 19,991 and paid fees thereon amounting to ₹ 975. The question as to the invalidity of the appeal on the ground of insufficiency of court-fee was answered by the Judicial Committee by holding that the memorandum of appeal did state in terms of the Act (i.e. the Court Fees Act) the amount at which the relief was sought and that determined the appeal. According to the Judicial Committee even if it was held that the fee payable was insufficient it was the duty of the court in exercise of its discretion to give an opportunity to add to the amount lodged the extra sum of ₹ 70 or 80 required for deferring the question of the amount of fee under the Court Fees Act until final value was ascertained. Referring to the provisions of s. 149 of the Code the Board observed that the discretion under that section extended to the whole or any part of any fee prescribed and could be exercised at any stage in the case, while finally, upon the extra payment being made, the document is to have the same effect as if it had been paid in the first instance . The Board further held that as the decree of the Subordinate Judge was dated 24th March, 1924, the first appeal was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - fee is not paid within the time allowed by the Court, s. 149 of the Code ceases to have effect, and the Court is precluded from filing or recording an unstamped or insufficiently stamped memorandum of appeal in court. According to Stroud, a legal proceeding is pending as soon as commenced, and until it is concluded i.e. so long as the court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein. When the deficiency in the payment of court-fees is made good and the document or memorandum of appeal is to be given the force and effect which it would have had if there had been no deficiency, the appeal must be treated as pending on 12th November, 1962. In Nagendra Nath v. Suresh (2 ) which turned on the interpretation of Art. 182(2) of the Limitation Act of 1908 as regards the validity of an appeal presented in an irregular form the Board observed that although there was no definition of 'appeal' in the Civil Procedure Code any application by a party to an appellate court asking it to set aside or revise a decision of a Subordinate Judge, is an appeal within the ordinary acceptation of the term, and that it was no less a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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