Case: Mannan Lal Vs. Mst. Chhotaka Bibi

1. In this appeal by certificate granted by the Allahabad High Court the only question is, whether Special Appeal No. 880 of 1962 of that Court was maintainable in view of the provisions of the U. P. Act XIV of 1962 abolishing such appeals.      2. The said Act styled the U. P. High Court (Abolition of Letters Patent Appeals) Act came into force on 13th November, 1962. Section 3 of the Act provided as follows:"(1) No appeal, arising from a suit or proceeding instituted or commenced, whether prior or subsequent to the enforcement of this Act, shall lie to the High Court from a judgment and order of one Judge of the High Court, made in exercise of appellate jurisdiction in respect of a decree of order made by a Court subject to the superintendence of the High Court, anything to the contrary contained in clause 10 of the Letters Patent of Her Majesty, dated the 17th March, 1866 read with Cl. 17 of the U. P. High Courts (Amalgamation) Ordr, 1948, or in any law notwithstanding.      (2) Notwithstanding anything contained in sub-section (1) all appeals pending before the High Court on the date immediately preceding the date of enforcement of this Act shall continue to lie and be heard and disposed of as heretobefore, as if this Act had not been brought into force"3. The memorandum of appeal in Special Appeal No. 880 of 1962 was presented in the High Court on 9th November, 1962. There was some doubt as to whether the Court-fee paid in respect of the memorandum at the date of its presentment was sufficient. Ultimately however a Bench of the High Court directed the payment of additional court-fee and on that being done the memorandum was accepted and registered in January 1963. The question before us is whether there was an appeal pending before the High Court on 12th November, 1962, i.e., the date immediately preceding the date of enforcement of the above U. P. Act.      4. It will not be out of place to set forth a short history of the litigation culminating in the filing of the said memorandum of appeal. On 2nd April 1872 a property was mortgaged with possession to one Beni Madho by two mortgagors, namely, Girdharilal and Smt. Sunder Bibi for a sum of Rs. 3684/-. The first respondent herein claiming to be the representative-in-interest of the mortgagors claimed to have paid the amount of the mortgage money to respondents 2 to 7 herein on 10th September 1945. She filed a suit on September 26, 1946 being Suit No.117 of 1946 praying inter alia for ejectment from the suit property of the appellant (impleaded as defendant No.1 in the suit) and another person impleaded as defendant No.8 a subtenant. For purposes of jurisdiction and court-fee she valued the property in suit. i.e. a grove with houses, at Rs.5,200/- besides Rs.420/- by way of mesne profits. Alternatively she prayed for a decree for Rs.3,684/- in case possession and occupation was not decreed to her. On 2nd November, 1951 the Additional Civil Judge of Mirzapur dismissed the suit as against the appellant and defendants 3 and 4. The plaintiff, the first respondent herein, filed First Appeal No. 309 of 1952 in the High Court at Allahabad on 26th February 1952. She valued the appeal at Rs.4,816/- and paid court-fee amounting to Rs.493-12-0. During the pendency of the appeal to the High Court, the original plaintiff died and her legal representatives were brought on record. A learned single Judge of the High Court allowed the appeal by a judgment rendered on 10th September, 1962. He held that the plaintiff was entitled to a decree for possession against respondents 1 and 8 and also passed a decree for Rs.420/- against respondent No.1 alone. According to the learned Judge defendants 2 to 7 being the representatives of the mortgagee were pro forma defendants and were not liable for the plaintiffs costs. On 8th November, 1962 the appellant (defendant No.1 in the suit) filed a memorandum of appeal which was ultimately registered as Special appeal No.880 of 1962 paying court-fee amounting to Rs.425/- on the basis of the valuation of the property at Rs.4,816/- The Stamp Reporter of the Court reported that the court-fee stamps affixed to the memorandum were insufficient by Rs.425/- according to the valuation of the property which was Rs.8,920/- on the basis of the relief claimed. Counsel for the appellant made an endorsement at the foot of the said report raising objections thereto. The Joint Registrar made a note on 9th November, 1962 reading:"Without going through the papers the question of court-fees cannot be decided forthwith. Let it be taken as presented to-day."The order sheet shows that"In compliance with the Registrars order dated 11th December, 1962 an objection filed by counsel for the appellant was put up with the Stamp Reporters Report."On 20th December, 1962 the Taxing Officer made a note that the deficiency of Rs. 425/- had been made good on that date by the appellant and that counsel expressed his desire not to press the objection raised earlier. The Taxing Officer directed that the matter be placed before the Court for orders as to the acceptance of stamps to make good the deficiency and for amendment of the valuation of the Special Appeal. The matter appeared on the board of a Division Bench of the High Court on 31st December, 1962 when it was adjourned till 3rd January 1963. On the last mentioned date the Bench allowed the amendment of the valuation of the appeal and directed the admission of the appeal and issue of notices. On the matter appearing before another Division Bench on 4th January, 1963 an explanatory order was made recording that the court-fee on the memorandum of the Special Appeal was originally deficient because the First Appeal had been wrongly undervalued inasmuch as the valuation of the property had been determined by the trial Court at the figure of Rupees 8,920/-. After that determination, the trial Court had called upon the plaintiff to make up the deficiency in respect of the court-fee for the relief of possession and the plaintiff had complied with that order. Consequently the order of the trial court determining the court-fee payable as well as the valuation had become final. The plaintiff should have valued the First Appeal at Rs. 8,920/- and his counsel was prepared to make up the deficiency in court-fee.      5. The point to note is that the appellant in the Special Appeal was probably not very much to blame inasmuch as he had valued the same according to the valuation put on the First Appeal by the plaintiff herself to start with.

Reasoning:
21. The words used in that Judgment are no doubt of wide import. But however that may be in the case before us there can be no difficulty in holding that an appeal was presented in terms of Order 41 Rule 1 of the Code inasmuch as an that this provision of law requires for an appeal to be preferred is the presentation in the form of memorandum as therein prescribed. If the court fees paid thereon be insufficient it does not cease to be a memorandum of appeal although the court may reject it. If the deficiency in the fees is made good in terms of an order of the court, it must be held that though the curing of the defect takes place on the date of the making good of the deficiency, the defect must be treated as remedied from the date of its original institution22. In view of the above reasons, we find ourselves unable to concur in the judgment of the High Court. In the main judgment under appeal, the reasoning appears to be that the memorandum of appeal had no effect before the making good of the deficiency and as the same took place after 12th November, 1962 the appeal was not saved by Section 3 (2) of the U. P. Act. The learned Chief Justice of the Allahabad High Court expressed the opinion that a memorandum of appeal barred by time stood on a footing different from the one in winch there was deficiency in the court-fee paid. According to him under Section 3 of the Limitation Act it is an appeal that is dismissed and not a memorandum of appeal. When therefore, Section 4 of the Court Fees Act deals with a memorandum of appeal the consideration of the laws of limitation bears no analogy to a deficiency in court-fees. With due respect we are not impressed the above reasoning. As already noted, although there is no definition of the word "appeal" in the Code of Civil Procedure, it can only be instituted by filing a memorandum of appeal. The filing of a memorandum of appeal therefore brings an appeal into existence: if the memorandum is deficient in Court-fee, it may be rejected and if rejected, the appeal comes to an end. But if it is not rejected and time is given to the appellant to make up the deficiency and this opportunity is availed of Section 149 of the Code expressly provides that the document is to have validity with retrospective effect as if the deficiency had been made good in the first instance. By reason of the deeming provision in Section 149 the memorandum of appeal is to have full force and effect and the appeal has to be treated as one pending from the date when it was before the Stamp Reporter and the deficiency noted therein17. On a parity of reasoning it is difficult to see why if a memorandum of appeal insufficiently stamped is not to be rejected as barred under the Limitation Act, why a different conclusion should flow as regards compliance with the Court Fees Act in view of the express provisions of Section 149 of the Code. In our opinion Section 149 will cure the defect as from the date when the memorandum of appeal was filed alike for the purpose of Limitation Act and the Court Fees Act and the appeal must be treated as one pending on the 9th November 1962 and as such unaffected by section 3 of the U. P. Act of 196213. In our view in considering the question as to the maintainability of an appeal when thee paid was insufficient to start with but the deficiency is made good later on the provisions of the Court. Fees Act and the code of Civil Procedure have to be read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other.