KAN SINGH, J. - (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. Learned counsel for the respondents has vehemently opposed this application. He submits that the delay in filing the deficit court fee should not be condoned. The appellant, according to him, had not shown sufficient cause for the condonation of the delay. Attention of the learned counsel was drawn to the defects pointed out by the Office as back as on 10-3-71 when Shri Dalpat Raj was present. The arguments on either side have travelled far and wide. The gist of submission made by learned counsel for the appellant is that the Court had admitted the appeal and, therefore, by implication it has condoned the delay. There was further bona fide mistake on the part of the learned counsel for the appellant & the Court should be liberal in condoning such delay. No right can be said to have been vested in the respondents in such a case where delay is to be condoned u/s. 149 of the C. P. C. The term, "good faith" while applying S. 149 C. P. C. has to be construed according to the General Clauses Act and not according to the Limitation Act. Learned counsel for the appellant, referred me to Amar Singh vs. Chaturbhuj (2), Jagatram vs. Kharaitiram (3), Custodian Evacuee Property vs. Rameshwar Dayal (4), Ganesh Prasad vs. Narendra Nath (5), Jagannath vs. Ram Dularey (6) and Mata Din vs. A. Narayanan (7 ). On the other hand, learned counsel for the respondents contended that the case of there being bona fide mistake on the part of the learned counsel for the appellant was not pleaded in the application, nor were there any circumstances put forth for the condonation of the delay. Then it was submitted that the delay in making good the deficiency in court fee had not been reasonably explained. At any rate, according to learned counsel, the period after learned counsel was apprised of the defects and before he made good the deficiency has not been explained. Indeed, according to him there was not a word of explanation regarding the same in the application under consideration. As regards the admission of the appeal by Bhargava J. , learned counsel for the respondents argued that there could be no application of the mind to the question of defects as at that stage the learned Judge was not invited to go into the question nor was the respondent, according to learned counsel, precluded from contesting this question. Learned counsel relied on Shakuntala Devi vs. Kuntal Kumari (8), Bikram Das vs. Financial Commissioner, Revenue, Punjab (9) for his submission. Then learned counsel cited a number of other cases, such as, Balkaran Rai vs. Govind Nath Tiwari (10), Sua Ditta vs. Ladhamal (l 1), Basawwa vs. Limbawwa (12), Mahant Ram Das vs. Ganga Das (13), Saeed Ahmed vs. Karan Singh (14), Smt. Amar Kaur vs. Iqbal Singh (15), Jodhraj vs. Kesho Das (15), M. L. Sethi vs. R. P. Kapur (17) and Ramlal vs. Rewa Coalfields Ltd. (18) for showing that the delay should not be condoned as a matter of course. The Court has a discretion under sec. 149 C. P. C. no doubt, but that discretion should be exercised in favour of a party who is able to show sufficient cause for the delay and in the present case, maintains learned counsel, no sufficient cause has been shown for the delay in making good the deficiency in court fee.
(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. Now I may deal with the facts of the present matter. In the application the appellant takes the stand that the judgment and decree sheets were not stamped with requisite court fee by a bonafide mistake. It was further submitted that the Court had thereafter admitted the appeal and thus it had condoned the delay by implication. Further, proceeds the application, respondent appeared in Court on several occasions, but this objection had not been taken. Even when the stay application was argued and an ad interim stay was granted on certain conditions the objection was not taken. In the alternative, it was submitted that even if the delay be not taken to have been impliedly condoned such delay be now condoned because of the bona fide mistake of the counsel for the appellant. In Amar Singh vs. Chaturbhuj (2) Modi J. observed : "when a party pays deficit court-fees beyond the time fixed, and has not asked the court to extend the time, but the court nevertheless admits the appeal and receives the fee, the only reasonable interpretation is that the court has implicitly, though not explicitly, extended the time, and this it can do within the meaning of sec. 149 even though the period of limitation has expired. " In that case the facts were that the limitation for the filing of appeal expired on the day the appeal was filed on insufficient court fee before the District Judge. The Court, however, did not reject the memorandum of appeal. On the following day the deficiency was made good and the stamp was cancelled and accepted by the Office of the District Judge The District Judge, however, rejected the appeal being barred by time. On appeal the High Court held that when the memorandum of appeal was filed it was open to the District. Judge to reject it at once as the document was insufficiently stamped and if he did not do so, it was open to the District Judge to allow the deficiency to be made good, whether the document has been accepted by inadvertence or expressly under sec. 149 C. P. C. In Ganesh Prasad vs. Narendra Nath (5) their Lordships of the Supreme Court held that the question of payment of court fee is primarily a matter between the Government and the person concerned and, therefore, where the High Court in the exercise of its discretion allows the appellant to amend his memorandum of appeal and grants time for payment of deficient court fee under sec. 149 C. P. C. the other party cannot attack the order on the ground that it takes away his valuable right to plead the bar of limitation. None of the other cases lays down a contrary principle. ;