1. A preliminary objection has been raised by the learned advocate for the respondent that no valid appeal was filed within limitation. The facts on which the preliminary objection is based are as follows: The last day on which the appeal should have been filed was 12th February 1930. The appeal was presented on that day but on a court-fee stamp of Rs. 10 only. It is not disputed that ad valorm court-fee should have been paid on the memorandum of appeal. The office reported on 18th February 1930 that there was a deficiency in the court-fee to the extent of Rupees 260. The same was paid next day, i. e., on 19th February 1930. A learned Single Judge of this Court, before whom the office report was laid for orders, directed, on 21st February 1930: 'Let the deficiency be received.'
2. The appeal was thenceforward treated as preferred on a properly stamped memorandum of appeal. It was laid before a Bench of this Court under Order 41, Rule 11, Civil P.C. and was admitted on 31st March 1930. The translation and printing of the record were taken in hand and after the preparation of the paper book the case has been put up for hearing before us today. The learned advocate for respondent has pointed out that an appeal filed without payment of the requisite court-fee can be rejected by the Court. It is contended that, in a case in which a nominal court-fee is deliberately paid without a valid excuse for non-payment of the full court-fee, the Court should not, in the exercise of its discretion, subsequently allow the appellant to make good the deficiency. Reliance is-placed on Brijbhukan v. Tota Ram : AIR1929All75 in which a learned Judge of this Court has held, that the Court has full power to refuse to accept a memorandum of appeal when it has the endorsement of the stamp reporter that the amount of court-fee paid is not sufficient. We do not doubt the correctness of this proposition. It was open to the learned Single Judge, who passed the order dated 21st February 1930, to reject the memorandum of appeal, the same not having been filed on payment of the full court-fee. There is nothing in the case to which reference has already been made to warrant the further proposition that the Court, before whom an insufficiently stamped appeal is filed, has no power to accept it on the deficiency being made good. Section 28, Court-fees Act, provides that:
No document which ought to bear a stamp under this Act shall be of any validity unless and until it is properly stamped. But, if any such document is through mistake or inadvertence received, filed, or used in any Court or office without being properly stamped, the presiding Judge... may, if he thinks fit, order that such document be stamped as he may direct; and, on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as it had been properly stamped in the first instance.
3. It was held by a Full Bench of this Court, as far back as 1890, in Balkaran Rai v. Gobind Nath (1890) 12 All 129 that a memorandum of appeal is of no validity if it is not properly stamped. The result was that where the deficiency was made good after the expiry of the period of limitation, the appeal was barred by limitation, unless Section 5, Limitation Act, could be applied. To soften the rigour of this rule Act 4 of 1892 added Section 582-A, Civil P.C., of 1882, which declared that a memorandum of appeal presented within the proper period of limitation but written upon paper insufficiently stamped by 'mistake as to the amount of the requisite stamp' shall be valid if the-deficiency be made good within a time which the Court may grant. Section 149, Civil Procedure Code, of 1908, has considerably enlarged the power of the Court. It has discretion to allow the deficiency in court-fee being made-good even where such deficiency was not due to mistake. The section declares that:
upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.
4. We have no doubt that the learned Single Judge of this Court who passed the order dated 21st February 1930 acted under Section 149, Civil P.C. in ordering the deficiency to be made good and in accepting the memorandum of appeal. It has been argued that the learned Judge should not have exercised his discretion in favour of the appellant in view of the fact that she deliberately under-stamped the memorandum of appeal because she had no ready money for payment of the full court-fee. It is too late to question the correctness of the order of the learned Single Judge, assuming we have power to do so. The respondent, oh whom notice of appeal must have been served shortly after 31st March 1930, when it was admitted under Order 41, Rule 11, Civil P.C. should have moved the Court for reconsideration of the order of 21st February 1930, assuming that it could be set aside by the same Judge or another Judge or Judges of this High Court. If he had done so and if the question was found to be one which could be decided in his favour the translation, printing and the preparation of the paper book would have been avoided. It will be unjust to the appellant to dismiss the appeal on the ground that the learned Judge should not have passed the order dated 21st February 1930. The learned advocate for the respondent contends that the Bench hearing the appeal can set aside the order of a Single Judge-previously passed as regards the deficiency in the court-fee being made good. Assuming the Court hearing the appeal has such power, we are clearly of opinion that we should not exercise it against the appellant and should uphold the order of 21st February 1930 in view of the circumstances already referred to.
5. We have also been referred to Krishnasami Panikondar v. Ramasami Chettiar AIR 1917 PC 179 in which their Lordships of the Privy Council held that the admission of an appeal after the period of limitation deprives the respondent of a valuable right, for it puts in peril the final decision in his favour, and therefore where an order for such admission is made ex parte, it is open to reconsideration at the respondent's instance. We do not think the analogy holds good in cases in which the memorandum of appeal is impugned on the ground that full court-fee was not paid thereon. Section 3, Limitation Act, is imperative and lays down that every appeal preferred after the period of limitation prescribed therefor shall be dismissed. There is no such provision in respect of appeals preferred on payment of insufficient court-fee. The Privy Council case therefore has no bearing on the question which we are called upon to decide.
6. For the reasons stated above, the preliminary objection is overruled, and we proceed to hear the appeal on the merits. (The rest of the judgment deals with facts and is not material to the report).