CMA 18/94 -Smt. Teeja Devi Vs. Karan Singh & Ors. Judgment dt.12.5.09 1/7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Smt. Teeja Devi Vs. Karan Singh & Ors. S.B. CIVIL MISC. APPEAL NO.18/1994 Date of order : 12th May, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. D.R. Lunkar for the appellant. 0Mr. C.R. Jakhar) for the respondents. Mr. O.P. Mehta) ----- BY THE COURT:- 1. This appeal is directed against the order dated 2.11.1993 passed by the learned trial court rejecting the application filed by the plaintiff-appellant under Order 33 Rule 1 C.P.C. seeking to pursue her suit filed for declaration and partition as a pauper without payment of court fees. 2. The learned trial court vide impugned order, after considering the evidence which was placed before it, found that the plaintiff was working as a teacher and retired from service in the year 1983 and had sufficient means and funds to pay the court fees of Rs.60,065/- in question and, therefore, her application under Order 33 Rule 1 was rejected. A period of one month was allowed by the CMA 18/94 -Smt. Teeja Devi Vs. Karan Singh & Ors. Judgment dt.12.5.09 2/7 learned trial court on 2.11.1993 for paying the requisite court fees. The said court fee was not deposited by the plaintiff Smt. Teeja Bai and she preferred this present appeal in this Court on 14.12.1993 and which has now come up for hearing. 3. Learned counsel for the appellant Mr. D.R. Lunkar submitted that the present appellant Mr. Rajendra Singh Choudhary claiming to be legal heir of Smt. Teeja Devi, who is said to have expired on 29.2.2008 leaving a Will in his favour does not want to contest the present impugned order but seeks leave of this Court to deposit the requisite court fees and pursue the said suit as legal heir. Learned counsel for the appellant, therefore, prayed for grant of some time to deposit the court fees in question and restore the suit for trial before the learned trial court. 4. The said contention of the learned counsel for the appellant is vehemently opposed by the learned counsels for the respondent-defendant Mr. O.P. Mehta and C.R. Jakhar, who submitted that under Section 149 C.P.C. exercising his discretion, the trial Court had already granted time of one month for deposit of court fees in question after rejecting the application filed by the petitioner under Order 33 Rule 1 C.P.C. and that period of one month was allowed to lapse and after few days thereof only the present appeal was filed before this Court on 14.12.1993. He submitted that the suit CMA 18/94 -Smt. Teeja Devi Vs. Karan Singh & Ors. Judgment dt.12.5.09 3/7 already rejected and dismissed since the Court fees in question has not been deposited in the learned trial court within prescribed time period, the learned counsel for the respondents relying upon the decision of this Court in the case of Smt. Bhairu Dan & Ors. Vs. Ratan Lal & anr. 1952 Vol.2 ILR (Rajasthan Series) 497 and the judgment of Supreme court in the case of Wander Ltd. & Anr. Vs. Antox India P. Ltd. 1990 (Supp) SCC 727 urged that at this stage this Court cannot extend the time limit for deposit of the court fees and restore the suit for trial as no perversity or error in the impugned order has been even argued by the learned counsel for the appellant. He also submitted that the suit which is now sought to be tried on deposit of court fees is even otherwise frivolous as the father of the appellant, who claims through the Will said to be executed in his favour by the deceased plaintiff Smt. Teeja Devi had filed such suit for declaration and partition which was dismissed by the learned trial court and thereafter the present appellant Shri Rajender Singh Choudhary also filed a suit for similar purpose which was also dismissed by the learned trial court. He, therefore, urged that there is no justification for allowing the present appeal and restoring such a suit for trial by the learned trial court. 5. Having heard learned counsels and upon perusal of the impugned order as well as the judgment cited at the Bar, this Court is of the considered opinion that there is no force in the present appeal and the same deserves to be dismissed. The reasons are as follows:- CMA 18/94 -Smt. Teeja Devi Vs. Karan Singh & Ors. Judgment dt.12.5.09 4/7 6. Though Section 149 CPC gives a discretion to the Court at any stage to allow the person by whom such court fees is payable to pay the whole or part of it as the case may be and upon such payment the document in respect of which such fees is payable shall have the same force and effect as if such fee had been paid in first instance, it does not vest the Court including this Court at the appellate stage to keep the lis surviving forever and grant the period for deposit of deficit court fees after a long lapse of period at any stage. The words “at any stage” in section 149 C.P.C. have to be construed harmoniously and in the context of letter and spirit employed in Section 149 itself. In the present case while rejecting the application under Order 33 Rule 1 C.P.C. the learned trial court had granted the one month's period for deposit of such court fees which was fair use of discretion vested in it under Section 149 C.P.C. The plaintiff allowed the said period of one month to lapse jolly well and even preferred this appeal after lapse of such period of one month in this Court on 14.12.1993. All these years for approximately 15 years, this appeal has remained pending in this Court for one reason or other. In the meanwhile during the period lapse of this long period certain other developments have already taken place like dismissal of the suit filed by the father of the present appellant and the appellant claiming through a Will, which is said to be executed in his favour by the deceased plaintiff Smt. Teeja Devi etc. Now at the stage of CMA 18/94 -Smt. Teeja Devi Vs. Karan Singh & Ors. Judgment dt.12.5.09 5/7 hearing of the appeal itself, the contention raised by the learned counsel for the appellant that he does not want to contest the merit of the impugned order but seeks to comply with the same and deposit the court fees to pursue the suit in question casts serious doubt on the bonafides of the present appellant to pursue the said suit. The discretion under Section 149 of C.P.C. even though vesting in this Court at this stage cannot be permitted to be used for giving liberty to the appellant to pursue the suit at this stage by deposit of court fees. The very purpose of giving the time frames in various provisions of Civil Procedure Code would be defeated if it were to be so. The judgments relied upon by the learned counsel for the respondents also throw considerable light on the manner in which such discretion has to be exercised by the courts with great amount of circumspection and such discretion is not to be invoked in favour of the litigants first for askance. The relevant portions of these two judgments relied upon by the learned counsel for the respondents are quoted below for ready reference: 7. This Court in the case of Smt. Bhairu Dan & Ors. Vs. Ratan Lal & anr. 1952 Vol.2 ILR (Rajasthan Series) 497 held as under:- “Where the court refuses the applicant to sue as pauper under party to make good the deficiency in court-fee at the same time, it has no jurisdiction later on to grant time to the party to make good the CMA 18/94 -Smt. Teeja Devi Vs. Karan Singh & Ors. Judgment dt.12.5.09 6/7 deficiency in court-fee under s.149 of C.P.C. Where an application for leave to sue as pauper is refused under O.XXXIII, r.7, and the applicant files second application for such leave in respect of the same right, the court while rejecting the second application as barred by O.XXXIII, r.15, has no power to grant time to the party to pay the requisite court-fee under s.149, C.P.C. When the court, after refusing pauper application under O.XXXIII, r.7, is not competent by a separate and subsequent order to grant time for payment of court-fee, obviously it cannot have such power while disposing of second application, which in view of O.XXXIII, r.15, is not even maintainable.” 8. The Hon'ble Supreme Court in the case of Wander Ltd. & Anr. Vs. Antox India P. Ltd. 1990 (Supp) SCC 727 held as under:- “The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on CMA 18/94 -Smt. Teeja Devi Vs. Karan Singh & Ors. Judgment dt.12.5.09 7/7 the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.” 9. In view of the aforesaid legal position, this Court is unable to accept the contention of learned counsel for the appellant and this Court finds no force in this appeal. The same is accordingly dismissed. No costs. [ DR. VINEET KOTHARI ], J. itemNo.5 babulal