1991 JTR(SC) 495
1993 AIR(SC) 1241 ; 1992 AIR(SCW) 3275 ; 1992 1 AllCJ 146 ; 1992 2 BC 625 ; 1992 1 BLJR 431 ; 1991 3 CurCC(SC) 446 ; 1992 1 CurLJ 70 ; 1991 2 GLH 320 ; 1992 ISJ(Banking) 293 ; 1991 4 JT 1 ; 1992 1 MLJ 12 ; 1992 1 PLJR(SC) 18 ; 1992 RD 16 ; 1992 1 RRR 351 ; 1993 2 RRR 667 ; 1991 2 Scale 661 ; 1991 4 SCC 529 ; 1991 Supp1 SCR 179 ; 1992 1 UJ 5 ; 1991 KHC 1040
SUPREME COURT OF INDIA
RANGANATH MISRA, CJI., A.M. AHMADI, P.B. SAWANT, JJ.
Mohammad Mahibulla, another, Appellants
Versus
Seth Chaman Lal (dead) by L.Rs., others, Respondents.
Civil Appeal No. 1290 of 1979
Decided on 18-9-1991.
Act
Referred
:CIVIL PROCEDURE CODE : S.149, S.107(2)
SUPREME COURT RULES : O.41
(A) The appeal pertains to court-fee compliance in appellate proceedings governed by Order VII of the Code of Civil Procedure, read with Sections 107(2) and 149. Section 107(2) endows the Appellate Court with the same powers as courts of original jurisdiction in respect of suits, including the regulation of court-fee payment. Section 149 expressly authorizes the court, at its discretion, to permit payment of deficient court-fee at any stage, thereby validating the document as if the fee had been paid initially. The court must balance procedural fairness with the need to prevent unnecessary delays, ensuring that an opportunity to rectify the deficiency is afforded unless, after such opportunity, the party fails to comply.
(B) Key principles include: appellate courts possess inherent power to regulate court-fee payment; a party must be given a reasonable opportunity to make good deficient court-fee before dismissal; and dismissal of an appeal on technical grounds requires strict compliance with procedure and a denial of the opportunity to rectify. Negligence by the appellant may be considered when determining costs against the party benefiting from the revival.
Facts of the case:
The plaintiff, Wakf Board, filed an appeal against a dismissal of a suit for a declaration of the right to passage and possession. The appellate authority held that court-fee of Rs. 638/- was payable, but only Rs. 15/- had been paid, and dismissed the memorandum of appeal. The High Court did not interfere, and special leave was granted by this Court. At that stage, the court directed the issuance of a show-cause notice to the respondents.
Findings of Court:
The court found that the learned Additional District Judge erred in not first giving the appellant an opportunity to pay the deficient court-fee before dismissing the memorandum of appeal. While the exemption at the trial stage did not extend to the appellate stage, the procedural requirement under Order VII and Section 107(2) of the Code of Civil Procedure, reinforced by Section 149, necessitated a chance to rectify the default. Consequently, the dismissal was set aside.
Issues:
Whether an appellate court must provide an opportunity to pay deficient court-fee before dismissing a memorandum of appeal, and whether the appellant is entitled to revive the appeal after rectification.
Ratio Decidendi:
An appellate court must, before dismissing an appeal on the ground of insufficient court-fee, direct the party to pay the balance within a specified time under Section 149, read with Order VII and Section 107(2) of the Code of Civil Procedure. Only upon failure to comply may the appeal be dismissed; otherwise, the dismissal is improper.
Result:
The appeal is revived on the condition that the appellant pays the deficit court-fee along with costs of Rs. 1,000/- within four weeks; otherwise, the order of dismissal stands.
(A) The appeal pertains to court-fee compliance in appellate proceedings governed by Order VII of the Code of Civil Procedure, read with Sections 107(2) and 149. Section 107(2) endows the Appellate Court with the same powers as courts of original jurisdiction in respect of suits, including the regulation of court-fee payment. Section 149 expressly authorizes the court, at its discretion, to permit payment of deficient court-fee at any stage, thereby validating the document as if the fee had been paid initially. The court must balance procedural fairness with the need to prevent unnecessary delays, ensuring that an opportunity to rectify the deficiency is afforded unless, after such opportunity, the party fails to comply.
(B) Key principles include: appellate courts possess inherent power to regulate court-fee payment; a party must be given a reasonable opportunity to make good deficient court-fee before dismissal; and dismissal of an appeal on technical grounds requires strict compliance with procedure and a denial of the opportunity to rectify. Negligence by the appellant may be considered when determining costs against the party benefiting from the revival.
Facts of the case:
The plaintiff, Wakf Board, filed an appeal against a dismissal of a suit for a declaration of the right to passage and possession. The appellate authority held that court-fee of Rs. 638/- was payable, but only Rs. 15/- had been paid, and dismissed the memorandum of appeal. The High Court did not interfere, and special leave was granted by this Court. At that stage, the court directed the issuance of a show-cause notice to the respondents.
Findings of Court:
The court found that the learned Additional District Judge erred in not first giving the appellant an opportunity to pay the deficient court-fee before dismissing the memorandum of appeal. While the exemption at the trial stage did not extend to the appellate stage, the procedural requirement under Order VII and Section 107(2) of the Code of Civil Procedure, reinforced by Section 149, necessitated a chance to rectify the default. Consequently, the dismissal was set aside.
Issues:
Whether an appellate court must provide an opportunity to pay deficient court-fee before dismissing a memorandum of appeal, and whether the appellant is entitled to revive the appeal after rectification.
Ratio Decidendi:
An appellate court must, before dismissing an appeal on the ground of insufficient court-fee, direct the party to pay the balance within a specified time under Section 149, read with Order VII and Section 107(2) of the Code of Civil Procedure. Only upon failure to comply may the appeal be dismissed; otherwise, the dismissal is improper.
Result:
The appeal is revived on the condition that the appellant pays the deficit court-fee along with costs of Rs. 1,000/- within four weeks; otherwise, the order of dismissal stands.
JUDGMENT
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 plaintiff 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."
2. 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.
3. The plea raised by the appellant before the learned Additional District Judge that the appeal was a continuation of the suit and the same 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."
4. Section 149 of the Code of Civil. Procedure provides:
"Where the whole or any part of any fee prescribed 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 discretion, 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."
5. Reading these two provisions together and keeping fairness 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 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 have been dismissed. This opportunity having not been given, we are of the view that the dismissal of the appeal was not appropriate.
6. 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 title appeal shall be revived to be dealt with in accordance with law. If there be failure to do so, the order of dismissal shall stand sustained.
7. We are inclined to agree with counsel for the respondents 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/-.
8. The appeal is disposed of accordingly.
Order accordingly.
For Citation: AIR 1993 SC 1241= 1991 (4) SCC 529 = 1992(1) UJ SC 5 = JT 1991 (4) SC I = 1991 Supp. (1) SCR 177 = 1992(2) BC 625 = 1991(2) Scale 661 = 1991(3) CCC 446.
Vikas Info Solutions Pvt. Ltd.