TMI Blog1950 (9) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... questions to this Bench : 1. Whether Section 4, Court-fees Act, is subject to, or controlled by, the provision of, and principles underlying, Section 6(2) of that Act ? 2. Whether the provisions of Section 4, Court-fees Act, override the provisions of Section 149, Civil P. C., so far as the power of the High Court to extend time for making good the deficiency in court-fee is concerned ? 3. In view of the long standing practice of this Court, should not the words in its discretion in Section 149, Civil P. C., continue to receive a liberal interpretation ? 4. Should poverty or inability to pay full court-fee at the time of filing an appeal be regarded as a sufficient ground for the exercise of the discretion of the Court in extending time under Section 149, Civil P. C., or under Section 6(2), Court-fees Act, if the latter is applicable to High Courts ? 2. The charging sections in the Court-fees Act for purposes of levying court-fee on documents in different Courts are divided into two chapters. Chapter II consisting of Sections 3-5 deals with fees in the High Courts and in the Courts of Small Causes at the Presidency towns; and Section 6 of Chap. III deals with fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fee indicated in either of the said schedules except where the amount or value of the subject-matter of the suit, appeal or proceeding to which it relates exceeds Rs. 500/- : Provided further that the fee payable in respect of any such document as is mentioned in the foregoing proviso shall not be less than that indicated by either of the said schedules before 1-5-1936. (2) Notwithstanding the provisions of Sub-section (1), a Court may receive a plaint or memorandum of appeal in respect of which an insufficient fee has been paid but no such plaint or memorandum of appeal shall be acted upon unless the plaintiff or the appellant, as the case may be, makes good the deficiency in court-fee within such time as may from time to time be fixed by the Court. (3) If a question of deficiency in court-fee in respect of any plaint or memorandum of appeal is raised by an officer mentioned in Section 24A the Court shall, before proceeding further with the suit or appeal, record a finding whether the court-fee paid is sufficient or not. If the Court finds that the Court-fee paid is insufficient, it shall call upon the plaintiff or the appellant, as the case may be, to make good the defic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en Sub-section (2) would have read: notwithstanding the provisions of Sub-section (l) and of Sections 3 and 4. By the Omission of any reference to Sections 3 and 4, Sub-section (2) clearly indicated that it was referring to cases of Courts to which Section 6(1) applied. This conclusion is strengthened when we look at Sub-section (4) of Section 6, and to Sections 6A and 6B. 7. Under Sub-section (4), in cases other than those mentioned in Sub-section (3) whenever a question of the proper amount of court-fee payable is raised, it is the Court which is required to decide the question. This, however, is contrary to the provisions of Section 5 which is applicable to High Courts under which the question of deficiency of court-fee has to be decided by a Taxing Officer and not by the Court except when the Taxing Officer himself refers the matter to the Chief Justice or such Judge as the Chief Justice may have appointed in that behalf. 8. Again, under Section 6A any person called upon to make good a deficiency in court-fee may appeal against such order as if it were an order appealable under Section 104, Civil P. C. This rule cannot apply to an order by a single Judge or a Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, I hold that Section 6(2) does not apply to documents presented in the High Courts or Courts of Small Causes in the Presidency towns. 12. It was next urged that the Court is bound to give time under Order 7, Rule 11, read with Section 107, Civil P. C. The argument was that under Section 107 an appellate Court including the High Court has the same powers and the same duties as are conferred or imposed on Courts of original jurisdiction in respect of suits instituted therein, and that since the Court of original jurisdiction is bound under Order 7, Rule 11, to grant time to make good the deficiency on a plaint so also an appellate Court is bound to grant time in respect of a memo of appeal. Order 7, Rule 11 refers to powers of a Court of original jurisdiction in respect of a deficiently stamped plaint. By reason of Section 107 an appellate Court has the same powers in respect of plaints. If it finds that, the plaint is insufficiently stamped, then it will follow the same procedure as a trial Court would have done. But that does not mean that a memo of appeal shall be treated likewise. However that may be, so far as a memo of appeal presented in a High Court is concerned, the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hardship caused by the Full Bench ruling. 16. When the Code of Civil Procedure of 1908 was enacted, Section 582A was replaced by Section 149. It extended the power of the Court which was conferred upon it under Section 582A in several respects. Section 149 applies not only to memo of appeals and applications for revisions but also to every other document; it empowers the Court to allow the deficiency in court-fee to be made good at any stage; and this power may be exercised even though the deficiency was not caused by a mistake of the party in calculating the amount of court-fee payable, but was caused otherwise. Section 149, however, does not make it obligatory on a Court to give time for the payment of deficiency in court-fee in every case. It requires a Court to act in its discretion. 17. Both the Code of Civil Procedure and the Court-fees Act deal with matters relating to procedure--one deals with the procedure to be followed when a suit or other proceeding is instituted, and the other deals with the amount of court-fee payable on documents presented in a suit or proceeding. They are in pari material and it is a well recognised principle of interpretation that sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds in its discretion can make the discretion exercisable as a matter of course because in that case it ceases to be a discretion and becomes a right of a party. 2l. In question No. 3, referred to us, there is an assumption that there is a long-standing practice of this Court by which the words in its discretion have received a liberal interpretation. So far as members of this Bench are aware, no uniform practice in the interpretation of the aforesaid words has been followed in this Court. Some Judges have interpreted the expression very strictly while others have interpreted it too liberally. For a strict interpretation : vide Brijbhukhan v. Tota Ram AIR1929All75 , followed recently by a Bench of this Court in Sri Krishna v. Saraswati AIR 1950 All 499 . 22. In other Courts as well there does not seem to be any uniformity in construing the words in its discretion. In Jagat Ram v. Misar Kharaiti Ram A. I. R. 1938 Lah 361 : 175 Ind. Cas. 699 the Full Bench of the Lahore High Court was inclined to take a liberal view of Section 149. Dalip Singh with whom other Judges agreed observed : It seems to me that the discretion conferred on the Court by Section 149, Civil P. C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iency in court-fee is due to a bona fide mistake in calculating the amount payable, or to circumstances beyond the control of the party concerned, e.g. robbery, non-availability of court-fee stamps etc., the Court will, no doubt, use its discretion in favour of the litigant; and (b) where a litigant is able to pay full court-fee and yet presents a document insufficiently stamped either because he expects a compromise in the case or he wants to await the result of some other litigation, or because he negligently failed to bring sufficient money with him for paying the court-fee, or for any similar reason ; or where he is guilty of contumacy or mala fides, e.g. when he wants to harass the other side by continuing a litigation, time will not be granted. 25. There may be cases lying between these two extremes. But no general rule can be laid down about them and they will have to be decided according to their own circumstances. 26. The question whether poverty or inability to pay full court-fee at the time of filing an appeal be regarded as a sufficient ground for the exercise of the discretion of the Court in extending time under Section 149, can be answered only with reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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