- (1.) THIS second appeal has been filed by one of the defendants against whom the respondents' suit was decreed ex-parte by the trial court, the first appellate court dismissing the appeal on the ground that the deficiency in court fee on the memorandum of appeal was not made good within the limitation
(2.) WE have heard the learned counsel for the parties and have examined the record as well The facts of the case have been set out at length in the judgment of the learned Additional Commissioner, Bikaner and need not be repeated here. The validity of the lower court's judgment is assailed before us on two grounds. Each one of them shall be dealt with separately. The first contention is that the lower appellate court was bound to give time to the appellant to make good the deficiency in the court fee under the provisions of Order VII, Rule 11 C. P. C. read with sec 107 C. P. C. The lower appellate court, it has been argued, dismissed the appeal on the ground of deficiency simultaneously with its decision that such a deficiency did exist The learned counsel for the respondents has argued that Order VII, Rule 11 C. P. C. has no application to appeals and as such the lower appellate court was not bound to require the appellant to supply the requisite court fee. The question is not free from difficulty for it has been the subject of a judicial controversy. The different High Court have taken different views. According to the High Courts of Travancore-Cochin, Bombay, Calcutta and Patna and the Chief Court of Oudh, Order VII, Rule 11 C. P. C. applies to memorandum of appeal by virtue of sec. 107. A contrary view has been taken by the High Courts of Allahabad, Lahore and Madras and the Judicial Commissioners Court of Nagpur, Ajmer and Peshawar. This point was examined by the Rajasthan High Court in Amar Singh vs. Chaturbhuj, 1957 R. L. W. 354. Modi J. while examining the point was pleased to observe thus: - | "it was strenuously contended before me on behalf of the defendant appellant that the view of the court below that Order VII, Rule 11 did not apply to appeals was wrong and that the true position was that Order VII, Rule 11 read with sec. 107 of the Civil Procedure Code was applicable to appeals also, Learned counsel placed reliance on Achut Ramchandra Pai vs. Hogapa Bab Balgaya (l), Jai Singh Gir vs. Sitaram Singh (2) Deoraj vs. Kunj Behari (3), Har Prasad vs. Kapurthala Estate (4), Bahuria Ramsawari Kuer vs. Dulhin Molraj Kuer (5), Sarjug Prasad Sahu vs. Surandrapat Tewari (6), Ramgati Singh vs. Shital Singh (7), Gajadhar Bhagat vs. Motichand Bhagat; (8), Against these authorities, the cases relied on, by the plaintiff respondent, as taking the view that the provision of O. VII. r. 11 were not applicable to appeals and the power to extend time for supplying the deficiency of stamps was entirely discretionary dependent on the facts and circumstances of each case are these Akharaju Narayana Rao vs. Akharaju Seshmma (9), Lekhram vs. Ramji Das (10) Brijbhukhan vs. Totaram (11), Aimaram vs. Singhai Kasturchan (l2), In re S. M. Khatumennessa Bibi (13), Pamidimuk Kala Sitharamayya vs. Ivaturi Ramayya (l4), Balwant Singh vs. Jagjit Singh (15), It is clear that there is a fairly serious conflict of judicial opinion of this point. My attention was, however, invited to an unreported decision of a Bench of our court in Bijailal vs. Daulal (Civil First Appeal No. 4 of 1950, decided on the 13th December, 1950) in which the learned Judges who disposed of the appeal took the view that O. VII, r. 11 had no application to appeals. There is no reported decision of this Court on this point, and I would therefore not pursue the point further and take it for granted for the purpose of the present appeal that O. VII r. 11, is not applicable to appeals," In view of this decision of the Rajasthan High Court we hold that Order VII rule 11 C. P. C. has no application to appeals and the contention raised before us is untenable. The other contention, however, is that the lower appellate court bad discretion under sec. 149 C. P. C. to grant time to make up the deficiency and that it did not act judiciously in refusing to exercise the same in favour of the appellant. Sec. 149 lays down 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 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 of such court fee; and upon such payment the document shall have the same force and effect as if such fee had been paid for the first instance. Evidently the payment of fee under this section cannot be claimed by a party as of right. It is in the discretion of the court to allow or not such payment. As has been pointed out by the Lahore High Court in A. I R. 1938 Lahore 361, A. I. R. 1955 Lahore 443, A. I. R. 1937 Lahore 276, A. I. R. 1937 Lahore 688, this discretion conferred on the court by this section is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive malafide or reasons of a similar kind. The respondent's counsel has cited Rajasthan Series I. L. R. 1955, page 608 wherein it was observed that power sec. 149 is to be exercised only when parties' conduct is bonafide. That case is clearly distinguishable from the present one. In that case the appellant was the plaintiff himself and was, therefore, expected to know very well that amount of court fee was necessary. In fact, he never said that he did not know what the proper court fee was in that case. He simply made a statement that he was poor and unable to manage the court fee and was sick for some time and on this ground it was held that there was no case for the power being exercised in his favour. In the present case it would appear that in the trial court on 22. 8. 57 the appellant's counsel failed to produce any evidence and hence the court did not grant any opportunity to the appellant to lead his evidence and proceeded ex parte against him. On the subsequent date the appellant applied under Order IX, rule 7 C. P. C. for setting aside the ex parte order. It was refused on the ground that Order IX, rule 7 C. P. C. had no application to the case and simultaneously with the rejection of that application the suit was decreed. An appeal was preferred before the Additional Collector. The office reported that nothing could be stated about the court fee as the memorandum of appeal was not accompanied by any decree. When a copy of the decree was filed the Presiding Officer or his office did not take this point into consideration untill an objection in that behalf was raised by the respondent. It was thereafter that the court held that the court fee was deficient. The learned counsel for appellant has argued before us that there was a bonafide mistake on the question of court fee. It was open to the appellant to challenge the order whereby ex parte proceedings were directed against him. It was also open to him to appeal against the ex parte decree itself. Thus there was a confusion in the mind of the appellant and as one of the applications could have been presented on a court fee of annas eight only, the memorandum of appeal in the case was not affixed with the requisite court fee. It was also argued before us that at a subsequent stage, but before the decision of the lower appellate court, the appellant offered to make good the deficiency. This request was, however, rejected with reference to the conduct of the appellant's counsel. Looking to the circumstances of the case, we feel that the lower appellate court was not justified in refusing to exercise the discretion under sec. 149 C. P. C. in favour of the appellant. There was a bonafide mistake and even the office of the lower appellate court did take no steps to point out the deficiency. It cannot be said that the appellate was guilty of contumacy or deliberate malafides in not affixing the requisite court fee initially. We, therefore, allow this appeal, set aside the order of the lower appellant court and remand the case back to it with the discretion that the appellant be granted two weeks time to make good the deficiency in the court fee on the memorandum of appeal and in case the deficiency is made good within the fixed period, the appeal should be heard and determined in accordance with law. .;