Tarun Agarwala - (1.) -Heard Sri Santosh Kumar Srivastava, the learned counsel for the petitioner and Sri A. P. Tiwari, the learned counsel appearing for respondent No. 3.
(2.) THE plaintiff respondent No. 3 filed a suit for specific performance, which was decreed by a judgment dated 5.2.2006. THE petitioner filed an appeal. A sum of Rs. 11,697 towards court fee was required to paid by the appellant. THE petitioner appellant presented the memorandum of appeal by depositing a sum of Rs. 665 and moved an application seeking time to deposit the remaining court fee. THE court vide order dated 9.3.2005 and 15.4.2005 granted time to the appellant to deposit the deficiency of court fee. It transpires that on 16.5.2005, the petitioner deposited a further sum of Rs. 6,500 and prayed further time to deposit the balance amount towards the deficiency of the court fee. THE Court rejected the application for the extension of the time. It transpires that the petitioner moved a recall application and during the pendency of the recall application, deposited the balance sum of Rs. 4,300 towards the deficiency of court fee and submitted before the Court that now the entire court fee had been deposited and therefore, the delay in clearing the deficiency of court fee be condoned and the appeal be registered and the order dated 16.5.2005 be recalled. THE District Judge vide his order dated 7.8.2006, rejected the application of the petitioner. Consequently, the present writ petition. The learned counsel for the petitioner submitted that sufficient ground had been made out for enlarging the time for clearing the deficiency of court fee. The petitioner submitted that because of financial constraints he was unable to deposit the court fee and on this ground he should not be denied the valuable right of filing an appeal and contesting the decree passed against him. Sri A. P. Tiwari, the learned counsel for the plaintiff-respondent submitted that the writ petition was not maintainable, inasmuch as the order dated 16.5.2005 was passed under Order XLI, Rule 17, C.P.C. against which the recall/restoration application could be filed under Order XLI, Rule 19, C.P.C. and upon the dismissal of such an application a miscellaneous appeal could be filed under Order XLIII, Rule 1 (t), C.P.C. Consequently, the present writ petition under Article 226 of the Constitution of India was not maintainable.
(3.) THE learned counsel for the respondents further submitted that in view of the provision of Sections 148 and 149, C.P.C. a party could not claim an extension of the time as a matter of right and that under exceptional circumstances, the Court has the discretion to enlarge the time for clearing the deficiency of the court fee. THE learned counsel further submitted, that in the present case, no exceptional circumstances was shown by the appellant for extending the period for clearing the deficiency of court fee and, consequently the Court below was justified in rejecting the application of the petitioner. In support of his submission, the learned counsel for the respondent placed reliance upon a decision of the Division Bench of this Court in Smt. Sukki and others v. U. P. Avas Vikas Parishad, Lucknow, (1999) 1 ACJ 304 and Rajesh Kumar alias Rajoo and others v. Bal Kishan Agnihotri, 1992 ACJ 786 : 1992 (2) AWC 1244. Before proceeding any further it would be appropriate to consider a few provisions of the Code of Civil Procedure. Section 149 of the C.P.C. reads a under : "149. Power to make up deficiency of court-fees.-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." ;