IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3506 of 2006 Date of Decision : May 15, 2008 Karan Singh ....Appellant Versus Smt. Bhagmal and another .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Sudhir Aggarwal, Advocate for the appellant. Mr. J.S. Yadav, Advocate for respondent No.2. T.P.S. MANN, J. Suit for specific performance of contract filed by appellant herein, was dismissed by learned Civil Judge (Junior Division), Gurgaon vide judgment dated 30.5.2005. While filing an appeal against the same, the appellant did not pay the requisite Court-fee and, instead, mentioned in para 9 of the memorandum of appeal that he be granted time for paying the Court-fee on the ground that his son was patient of Cancer and was under treatment on which he had spent a huge amount. He did not file any separate application under Section 148 of the Code of Civil Procedure (for short ‘the Code’) for enlargement of time for paying the Court-fee or under Section 149 of Regular Second Appeal No. 3506 of 2006 the Code to make up the deficiency of Court-fee. He remained contented with having made specific mention in para 9 of the memorandum of appeal so as to seek the grant of time for doing the same. However, it was reported by Superintendent of first appellate Court that the Court-fee was correct. The appeal was, accordingly, admitted on 2.8.2005. On 11.8.2006, it was brought to the notice of lower appellate Court for the first time when the said Court insisted for advancing arguments that proper Court-fee had not been affixed. At that stage, learned counsel for the appellant requested for time for affixing Court-fee, while learned counsel for respondent No. 2 objected to it on the ground that the appeal had become time barred. Learned lower appellate Court did not grant the permission to the appellant to make up the deficiency of Court-fee and proceeded to reject the appeal on that ground alone vide its impugned judgment dated 17.8.2006. Aggrieved of the same, the appellant filed the present second appeal in this Court under Section 100 of the Code. After issuance of notice of motion, only respondent No. 2 put in appearance through his counsel for opposing the appeal. Respondent No. 1 had been served but no one put in appearance on her behalf. Even before the learned lower appellate Court, it was respondent No. 2, who had objected to appeal on the ground of having been filed without affixing the Court-fee, whereas respondent No. 1 was proceeded ex parte. -2- Regular Second Appeal No. 3506 of 2006 From the arguments raised by learned counsel for the parties, I find that the following substantial questions of law arise for determination :- 1. Whether the learned first appellate Court should have granted time for making up the deficiency of Court-fee ? 2. Whether the appeal could be dismissed on a technical ground that formal application under Section 148 C.P.C. or under Section 149 C.P.C. had not been filed and the plea for grant of time was raised by the appellant only in the grounds of appeal ? 3. Whether the respondents have a right to object for the extension of time in making the deficiency in Court-fee which is a matter between the State, i.e. Revenue and the appellant ? The law requires affixing of appropriate Court-fee, while filing appeal by the person aggrieved of the judgment and decree of the Court below. In the event of his not affixing the Court-fee within the period prescribed for filing the appeal, he is required to file an -3- Regular Second Appeal No. 3506 of 2006 application under Section 148 of the Code to apply for enlargement of the period. Such a period could also be enlarged even when the period, originally fixed or granted, may have expired. Further, the Court may, in its discretion, enlarge the period from time to time, not exceeding 30 days in total. Even if no such Court-fee has been paid, the Court has discretion under Section 149 of the Code, to allow any person by whom such Court-fee is payable and at any stage, to pay the whole or part of such Court-fee. Once such a Court-fee is paid by the person after having been allowed by the Court, it has the same force and effect as if such fee had been paid in the first instance. Admittedly, no such application, either under Section 148 or under Section 149 of the Code, was filed by the appellant before the first appellate Court. On the other hand, he remained under the impression that he had specifically prayed in para 9 of the memorandum of appeal for the grant of time so as to deposit the Court- fee. Now, it has to be seen as to whether the appellant could be denied the hearing of his appeal by the first appellate Court on the ground that he had not filed any application either under Section 148 or under Section 149 of the Code so as to seek extension of time for paying the Court-fee or permitting him to make-up deficiency of the Court-fee. In Messrs Ajey Textile, Amritsar Vs. The British India Corporation, Dhariwal, Punjab Law Reporter 1969 Short Notes of -4- Regular Second Appeal No. 3506 of 2006 Cases 31 Page 19, it was held by a Division Bench of this Court that the Court was not bound to allow the appellants an opportunity to make up the deficiency in Court-fee after the expiry of a period of limitation prescribed for preferring the appeal, particularly in a case where there was no dispute about the quantum of the Court-fee payable, but the appellants had knowingly and deliberately paid deficient Court-fee on the solitary ground that they were not possessed of sufficient funds to pay the requisite Court-fee within the period of limitation. As is apparent from the said judgment, the appellants had knowingly and deliberately not paid the Court-fee on the ground that they were not possessed of sufficient funds to pay the same. On the other hand, in the present case, the appellant had pleaded in para 9 of the memorandum of appeal that his son was suffering from Cancer and huge amount had been spent on his treatment. It cannot be said that the appellant had deliberately not paid the requisite Court-fee while filing the appeal. It is another thing that he knowingly did not do so but expressed his inability for the reason mentioned above. Under these circumstances, the aforementioned Division Bench judgment may not be strictly applicable to the facts and circumstances o the present case. In Buta Singh (Dead) by LRs Vs. Union of India AIR 1995 Supreme Court 1945, it was held that aid of Section 149 of the Code could be taken only when the party was not able to pay Court-fee in circumstances beyond his control or under unavoidable circumstances and the Court would be justified in an appropriate case -5- Regular Second Appeal No. 3506 of 2006 to exercise the discretionary power under Section 149 of the Code after giving due notice to the affected party. However, the appellants therein were held entitled to adjudication of the amount on which the Court-fee had been paid by them and not allowed to pay Court-fee so as to claim a higher amount. The matter was an appeal under Section 54 of the Land Acquisition Act, 1894 and the appellants had paid lesser Court- fee by restricting the value of the appeals and later on sought enhancement of their claim by paying requisite Court-fee on the amount of which they sought the enhancement. It was held that if such a practice was allowed, it would create unhealthy practice and would become a game of chess and a matter of chance. That practice would not be conducive and proper for orderly conduct of litigation. In the present case, the appellant had filed suit for specific performance of agreement dated 15.4.1997 in respect of a piece of land for a total sale consideration of Rs. 5,27,968/-, out of which he had already paid an amount of Rs. 5 lacs as earnest money. The balance sale consideration of Rs. 27,968/- was to be paid by him to the owner of the property at the time of execution and registration of sale deed. He had clearly stated the exact value of the claim. While filing the suit, he had paid Court-fee worth Rs. 25,370/-. Even while filing appeal before the first appellate Court, he stuck to his stand regarding the total sale consideration and the earnest money paid by him. Position remained the same even when he filed the present second appeal before this Court. It is not that he had been trying to gain any advantage by -6- Regular Second Appeal No. 3506 of 2006 seeking permission for extension of time so as to pay the requisite Court-fee. In Mehar Singh Vs. Sadhu Ram 2003(3) Civil Court Cases 175, it was held by this Court that under Sections 149 and 151 of the Code, the Court had jurisdiction to permit the party to make up the deficiency in Court-fee after expiry of the period of limitation. In Sushil Kumar Raut Vs. M/s Virender Bhatnagar Sansthan and another 2004(1) RCR (Civil) 49, it was held by Delhi High Court that Section 149 of the Code had to be interpreted and given effect to in a liberal manner. A relief was not to be denied to an individual on the ground that he had not been diligent or was negligent. The relevant observations are as under :- “16. Having noted the legal position, as enumerated and as noticed in V.O. Devssay V. Periyar Credits and Another (supra) and other authorities referred to in paras 6 to 9, the position which emerges is that :- (i) Section 149 C.P.C. has to be interpreted and given effect in a liberal manner; (ii) the payment of deficit Court-fee is a matter between the State i.e. Revenue and the plaintiff; -7- Regular Second Appeal No. 3506 of 2006 (iii) the effect of allowing an application under Section 149 CPC is as if the deficit Court-fee stood paid on the date of initial presentation; (iv) while judging whether the application under Section 149 CPC should be allowed or not the same has to be tested on the touch stone of whether the plaintiff acted bona fide as per the definition of expression in General Clauses Act and not as per the Limitation Act; (v) relief is to be denied to the plaintiff if he did not act bona fide or his conduct was contumacious. Relief is not to be denied even though he may not have been diligent or had even been negligent.” Once a specific plea had been taken by the appellant in the memorandum of appeal presented before the learned lower appellate Court seeking the grant of time for depositing the Court-fee, it very well amounted to his asking for relief under Sections 148 and 149 of the Code, although, he did not file any specific application mentioning these two provisions of the Code. The lower appellate Court should not have denied permission to the appellant to pay the Court-fee for want of a formal application for the said purpose. It ought to have considered his plea mentioned in para 9 of the memorandum of appeal -8- Regular Second Appeal No. 3506 of 2006 that he was asking for enlargement of time for paying the Court-fee or for making up deficiency of Court-fee. Even recourse to the provisions of Section 151 of the Code could have been taken by the learned lower appellate Court for invoking its inherent powers so as to enlarge the time for the appellant to pay the Court-fee or to permit him to make up deficiency of Court-fee, as it was necessary for the ends of justice, more so, when after the filing of appeal before learned lower appellate Court, the Superintendent had reported, although wrongly, that Court- fee was correct and the appeal stood admitted vide order dated 2.8.2005. In view of the above, it is held that the approach of first appellate Court in not granting time to the appellant for making up deficiency of Court-fee was not correct. The appeal could not have been dismissed on the technical ground that formal application under Section 149 of the Code had not been filed. Moreover, the right to object to the extension of time in making up deficiency of Court-fee did not lay with the respondents but with the State as Court-fee is the nature of revenue. Resultantly, the appeal is allowed. Impugned judgment and decree passed by learned lower appellate Court is set aside. The matter is remanded to the learned lower appellate Court, where the appellant shall pay/furnish requisite Court-fee within one month from today. On his doing so, learned lower appellate Court shall proceed -9- Regular Second Appeal No. 3506 of 2006 and dispose of the appeal on merits. Before parting with the judgment, reference may also be made to C.M. No. 4350-C of 2008 filed by the appellant, praying therein for restraining respondent No. 2 from raising construction over the suit land. Notice of the said application was issued on 8.5.2008 to respondent No. 2 through his counsel for today and in the meantime, said respondent was restrained from raising the construction. In view of the aforementioned decision in the appeal, learned counsel for the appellant wishes to withdraw the application with liberty to move learned appellate Court for the same relief. Ordered accordingly. The interim order dated 8.5.2008, restraining respondent No. 2 from raising construction shall remain in operation for a period of one month from today. ( T.P.S. MANN ) May 15, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO -10-