GULAM ABBAS Vs. SHRI KALYAN FINANCE CO AJMER

JUDGEMENT

(1.) THE case is before me for the disposal of an application moved by learned counsel for the appellant on 13-12-74 u/sec. 149 of the Code of Civil Procedure read with sec. 5 of the Rajasthan Court Fee Act for allowing time to the appellant for making up deficiency of court fee. THE application came to be made under the following circumstances : THE appellant filed the appeal on 2-1 71 against the judgment and decree of the Senior Civil Judge, Ajmer dated 27-7-70. THE Office found that the appeal was filed within time, but it noticed that the certified copies of the judgment and decree did not bear court fee stamp; the court fee stamps requited being of Re. 1/- and Rs. 1 50 paise respectively. THE case was ordered to be put up on 12-2-71, but as the deficiency of court fee was not made good the case was ordered to be put up on 10-3-71. On 10-3-71, Shri Dalpat Raj, one of the counsel for the appellant, was present, but as the defects had not been removed the case was ordered to be put up before the Registrar on 5-4-71. Before this date, however, the deficiency of Rs. 2. 50 paise in court fee was made good and accordingly the case was ordered to be listed for admission in court. On 28-4-71 the appeal came up for admission before Bhargava J. who admitted the same and ordered the issue of notices to the respondents. THE appeal remained in the Office for the service of the respondents and was eventually listed for hearing in court on 12-9-73 before Modi J. who ordered that it be put up before another Bench. Accordingly the appeal was put up before me on 8-10-73. It was adjourned at the request of the learned counsel for the respondents. Eventually for one reason or the other the appeal was not heard by me till 5-12-74. Learned counsel for the respondents raised a preliminary objection on this date that the appeal was barred by time inasmuch as the deficiency in the court fee to the extent of Rs. 2. 50 paise was made good after the period of limitation had expired. Learned counsel for the respondents emphasised that not only there had been no application for condonation of delay, but there was no sufficient cause either for condoning the delay. He invited attention to Jai Bhagwan vs. Om Prakash (l) in support of his preliminary objection. Learned counsel for the appellant prayed for an adjournment to meet this objection. THE case was, therefore, adjourned.

(2.) IT was in the above circumstances that the present application under sec. 149 of the Code of Civil Procedure came to be moved.

(3.) NOW Sec 149 of the Code of Civil Procedure provides that 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 fee 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. Art. 5 and 7 occurring in the second Schedule of the Rajas-than Court Fee Act provide that the judgment and decree shall bear a court fee stamp of Rs. 1/- and Rs. 1. 50 paise respectively. Learned counsel do not contest that the judgment and decree were required to bear a court fee stamp. Unlike Order 7 Rule 11 (c) C. P. C. where the Court is bound to grant some time to supply the deficient court fee there is no such obligation on the Court to grant time for making good the deficiency in court fee on a memorandum of appeal. Therefore, in such a case the Court has a discretion under sec. 149 C. P. C. to allow court fee to be paid at any stage. The discretion being judicial has to be exercised like any other judicial discretion. The discretion cannot be exercised in favour of the party who has not acted bona fide or was not under any honest mistake or doubt. It is also evident that the word "bona fide" or "good faith" has to be taken in the sense contemplated by the General Clauses Act and not as under the Limitation Act. The definitions under the Limitation Act will be applicable when the delay is to be condoned under any provision of the Limitation Act. A party who had been negligent is not entitled to the exercise of the Court's discretion in his favour, nevertheless the Court has to take note of frailties of human mind. Where the Court is satisfied that there has been a mistake not attributable to any mala fides, the Court may be justified in condoning the delay on reasonable terms. The discretion vested under sec. 149 C. P. C is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind.