1. Only one question is raised in this second appeal. It appears that the appellant who was the plaintiff had his suit dismissed in the Court of first instance. He went to the Court of the District Judge and filed an appeal. According to the valuation of the appeal, which was the same as the: valuation of the suit, the proper Court-fee payable was of Rs. 55, i.e., Rs. 10 in respect of a declaration which was being claimed and Rs. 45 in respect of the claim for possession.
2. The memorandum of appeal was filed on a ten rupee stamp on the 4th November 1921.
3. That was the date on which the Courts opened after the long vacation. The Munsarim recorded a report on the memorandum of appeal stating that the appeal was within time but pointing out that the memorandum of appeal was insufficiently stamped. On the 7th November 1921 the learned District Judge recorded the following order:
I am not prepared to allow further time as only Rs. 10 Court-fee stamp has been paid and Rs. 55 were due. The appeal will be rejected as insufficiently stamped.
4. We may point out, in the first place, that the learned District Judge had no right to reject the appeal on the ground that it was insufficiently stamped. The power of rejection in respect of a memorandum of appeal are set out in Order XLI, Rule 3. Again, it does not appear from the Judge's order, although he says that he is net prepared to allow 'further time' that any time had been allowed to the appellant to make good the deficiency. It is true that under Section 149 a discretion is reserved to the Court in the matter of granting time for the making up of deficiencies in Court-fees, and if we were satisfied in the present case that the learned Judge had exercise a any discretion we should not have interfered. It does not, however, appear that the learned Judge really did exercise any discretion in the matter. He does not give any reasons why he is not prepared to allow the deficiency to be made good. We think the proper course, therefore, is to allow this appear, set aside the order of the Court below and direct the appeal to be returned to the District Judge who will give the appellant an opportunity of showing pa why the Court's discretion shorn exercised in his favour under possessions of Section 149 of the Procedure. Costs to (sic) We may note for the (sic) learned Judge that which was payable in the Court has already (sic) Court.