S.R.Bhargava - (1.) -On 29th September, 1986 appellants Ramesh Chandra and others filed Memo of Appeal against Judgment and decree dated 13th May, 1986. The application for copies was filed on 16th May, 1986 and copies were ready and delivered on 1st July, 1986. On the Memo of Appeal Court-fee payable was Rs. 837.50 but only Court-fee of Rs. 37.50 was paid. An application for one month's time to pay the deficient Court-fee was filed and appellants were allowed one month time for making good the deficiency.
(2.) THEN the appellants did not make good the deficiency and the Memo of Appeal remained pending with deficient Court-fee. THEN on 29th July, 1988 respondents no. 1 to 5 filed application praying that appeal be dismissed on ground of deficiency of Court-fee and on ground of limitation. When the matter was taken up for hearing, learned Counsel for appellants made oral prayer for short time to pay deficient Court-fee. Law on the point relating to High Court, was stated in five Judges' Full Bench case of Wajid Ali v. Isar Bano urf Isar Fatma, 1950 ALJ 802 as follows :- "(1) Ordinarily a document insufficiently stamped is not to be received, filed, exhibited or recorded in a Court. (2) When, however, an insufficiently stamped document is presented to the court, the court has to decide whether it will exercise its discretion in allowing time to the party presenting the document to make good the deficiency. (3) If it decides that time should not be granted, it will return the document as insufficiently stamped. (4) If it decides that time should be granted, it will give time to the party to make good the deficiency, and in order to enable the party to make good the deficiency within the time allowed, the court will tentatively for that limited purpose receive the document. (5) If the deficiency is made good within the time fixed, the document is to be deemed to have been presented and received on the date on which it was originally filed. (6) If the deficiency is not so made good, the document is to be returned as insufficiently stamped by virtue of Section 4 of the Act. Evidently appellants were allowed one month's time to make good the deficiency. Had they availed that time and made good the deficiency, there would have been no difficulty in the instant case. So under the law settled by the Full Bench this Court is bound to return the Memo of Appeal as insufficiently stamped. The learned counsel for the appellants, however, referred to Section 149 of CPC and prayed for time. Once again reference may be made to the Full Bench decision referred to above. At the bottom of column 1 of page 807 it was observed :- "In the cases before us the appellants have deliberately and to suit their own convenience paid on their appeals insufficient court-fees, in fact they have paid only a small fraction of the fees which they admit are payable by them. In such cases the court is not, in my opinion, bound to receive the appeal and give the appellants time to make good the deficiency".
(3.) AFTER making the above observation their Lordships laid down the law regarding granting of time for making good the deficiency as under :- "(a) Where insufficiency 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, for example, 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, for example, when he wants to harass the other side by continuing a litigation, time will not be granted." In the instant case after expiry of one month appellants neither paid deficient court-fee nor applied for time. They sat quiet. Only when the respondents applied for dismissing the appeal, oral prayer for time to pay deficient court-fee was made. It is evident that the appellants negligently failed to pay deficient court-fee and at the same time kept their appeal pending. It should not be forgotten that discretion under section 149 CPC is judicial discretion. There must be reason for exercise of judicial discretion in favour of a party. When no application for time to pay deficient court fee is made and no reason for time is assigned, judicial discretion under section 149 CPC cannot be exercised.;