S.S.DEWAN, J. - (1.) THIS appeal under Clause X of the Letters Patent is directed against the judgment of the learned Single Judge in Regular First Appeal No. 27 of 1963, dated January 14, 1975.
(2.) THE facts are not in duspute and lie in a narrow compass. The plaintiff -appellant (Jabar Singh deceased) filed a suit for partition of a joint house. The respondent raised objection that the court -fee had not been property affixed on the plaint. The trial Court framed the following two preliminary issues : - "(1) What is the market value of the property in suit ? (2) What is the proper valuation of the plaint for Court -fee and jurisdiction ?" The trial Court decided Issue No. 2 against the appellant and fixed the valuation of the plaint for the purposes of court -fee and jurisdiction at Rs. 7035/ - and directed the appellant to make up the deficiency in court -fee, which was done by him. The appellant's suit having been dismissed by the trial Court, he filed an appeal in this Court. He affixed a court -fee of Rs. 19 -50 P on the Memorandum of Appeal. The office raised an objection by pointing out the decision of Issue No. 2 of the trial Court. Inspite of this objection, deficiency in the court -fee was not made good. At the time of the hearing of the appeal the respondent raised objection that there being no proper Memorandum of Appeal before this Court, the Memorandum be rejected. the learned Single Judge considered the contentions of the appellant -seriatum and dismissed the appeal. Feeling aggrieved, the legal -representatives of Jabar Singh have filed the letters patent appeal.
(3.) THE learned counsel for the appellant urged the following two points : - (i) that before the Memorandum of Appeal was rejected, time ought to have been granted to the plaintiff -appellant to make good the deficiency. (ii) that in any case opportunity to make good the court -fee ought to be given under section 149 of the Civil Procedure Code. These contentions were raised before the learned Single Judge and repelled for detained reasons recorded by him after referring to two cases M/s. Ajey Textile and others v. The British Indian Corporation and others, I.L.R. Pb. Hary. 1970(2) 127, and S. Wajid Ali v. Mt. Isar Bani Urf Isar Fatma, A.I.R. 1951 All. 64. These points raised before us are concluded by the judgment of a Division Bench of this court in case M/s. Ajey Textile and others. In this case, it was held : - "That the question whether poverty or inability of the appellant 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 Court in extending time under section 149 of Civil Procedure Code can be answered only with reference to the facts of a particular case. A mere allegation that a party is unable to pay court -fee on the date when he presents an insufficiently stamed document is not enough for the exercise of the discretion in his favour, but that if further circumstances are shown which satisfy the Court that the inability to pay court -fee has been caused by circumstances beyond the litigant's control, or if substantial amount of court -fee has been paid and a comparatively small amount remains to be paid thus showing the bona fides of the litigant, time may be extended. That the provisions of Order 7, Rule 11(c) of the Code do not apply to appeals, and the appellate Court is entitled to reject an appeal if the full court -fee has not been Paid, without calling upon the appellant to pay the deficient court -fee, because in so far as the memorandum of appeal is concerned, express provision has been made in Order 41 Rule 3 for its rejection on the grounds stated in that rule. The appellate Court is not bound to allow the appellant an opportunity to make up the deficiency in court -fee after the expiry of the period of limitation for preferring the appeal particularly in a case where there is no dispute about the quantum of the court -fee payable, but the appellant has knowingly and deliberately paid deficient court -fee on the solitary ground that he is not possessed of sufficient funds to pay the requisite court -fee within the period of limitation." ;