VED PRAKASH Vs. SHAKUNTALA DEVI

JUDGEMENT

(1.) The appellant -applicant has filed this appeal against the decree and judgment dated 7 -11 -1994 passed by District Judge, Kangra at Dharamshala whereby his appeal was dismissed and the decree and judgment dated 12 -4 -1994 of Sub -Judge 1st Class (1), Dharamshala, District Kangra was affirmed dismissing his sait. It is .not in dispute that in view of the value for the purpose of court fees and jurisdiction, as assessed by the appellant -applicant, at Rs, 40,000 a court fees of Rs. 2,588 was required to be affixed on the memorandum of appeal. The appellant -applicant had affixed court fees of Rs. 10 only and moved an application (C.M.P. No. 238 of 1995) seeking two months -time to make arrangement for the purchase of the court fee and make good deficiency thereof. The ground for not fixing the requisite court fee was his inability to arrange for the money to purchase the court fee. The application is supported by the affidavit of the appellant -applicant.

(2.) When the appeal as well as C. M. P No. 238 of 1995 came up before this Court on 20 -5 -1995 notice was issued to the respondents in the appeal and the appellant "applicant; was permitted to make good the deficiency of court fee within a period of two months as prayed for and the application was allowed On the failure of the appellant -applicant to make good the deficiency in court fee. the matter was listed for orders on 20 -3 1997, when at the request of learned Counsel appearing for the , appellant applicant, the case was adjourned for one week Thereafter, the deficiency in court fee was made good on 26 -3 -1997 and the case was listed for orders on 27 -3 -1997, when learned Counsel for the respondents seriously opposed the extension of time to make good the deficiency in court fee and prayed that the appeal may be dismissed.

(3.) This Court has heard learned Counsel for the parties and gone through the record Section 149 of the Code of Civil Procedure (hereinafter called the Code) is very clear that the court has the discretion to allow a person at any stage to pay the whole or part of the court fees prescribed for any document and upon such payment the document, in respect of which such fees is payable shall have the same force and effect as if such fees had been paid in first instance. Such a discretion was exercised by this Court when order dated 20 -5 -1995 was passed and two months time was granted to the appellant -applicant to make good the deficiency in the court fees Neither he complied with this order nor he prayed for extension of time for its compliance for a period of one year and ten moths till the appeal was listed for orders on 20 -3 -1997, when the case was adjourned for one week at the request of the learned Counsel for the appellant -applicant It is thereafter on 26 -34997 that deficit court fees was filed without making an application for extension of time. 4, Now the question arises whether in these facts and circumstances it will be just and proper to allow the appellant -applicant to make good the deficiency in court fees by enlarging the period of two months granted by order dated 20 -5 -1995. Before answering this question, this Court will advert to the case law cited by learned Counsel for the appellant -applicant. The first case is of Delhi High Court in Union of India, Delhi v. Roshan Lal and another, AIR 1968 Del I65S wherein it is held that a document not bearing proper court fees cannot be considered to be validity presented in the court, but since the question of court fees is between the Revenue and the litigant, the court has discretion to allow a litigant to pay the court fees prescribed for any document by the law at any stage as provided under section 149 of the Code but while exercising discretion albeit, judicial discretion in favour of a litigant, the court has really to keep all the relevant facts in view.