R.S. Narula, J.
1. The only question calling for decision in this application is whether on the facts and in the circumstances of this case we should or we should not exercise our discretion under Section 149 of the Code of Civil Procedure to allow the appellant extension of time for making up the court-fees payable on the petition of appeal in this case (which has already been made up).
2. On 14-10-1964 the Court of Shri M. L. Mirchia. Sub Judge 1st Class, Patiala passed a decree in favour of Pt. Nand Kishore, respondent against the State of Punjab, the appellant before us, for a declaration to the effect that the compulsory retirement of the respondent was illegal, void and unconstitutional and for payment of Rs. 13,649.08 nP. with interest at the rate of 6 per cent per annum on that amount from 10-6-1964 till realisation. On 14-1-1965 Regular First Appeal No. 156 of 1965 was filed by the State of Punjab against the above-said decree of the trial Court. A sum of Rs. 1,474 was paid in court-fees on the appeal. This was ad valorem fee payable on the principal amount decreed plus the subsequent interest accrued due thereon till the filing of the appeal. Rs. 19.50 were payable on account of court-fees on the relief for declaration which had been granted to the respondent by the trial Court and which was being questioned in the appeal in this Court. No court-fee was paid on this account. The petition of regular first appeal was returned by the Registry of this court to the appellant under endorsement dated 18-1-1965. Two objections were raised out of which the material one is the first objection which was in the following words :--
' Memo of appeal is insufficiently stamped. Court-fee on claim of declaration should also be paid.'
3. The petition of appeal appears to have been refiled after making up the court-fees on 17-2-1965. 23 days have been taken in this case for obtaining the requisite certified copies. After excluding that period the petition of appeal had to be filed in this Court by the 6th of February. 1965. The petition of appeal had originally been returned to be refiled within a week But the Registry accepted the same without any objection when refiled on 17-2-1965. If proper court-fees had been paid on the petition of appeal in the first instance, no difficulty would have arisen. Deficiency in court-fees having been made up, the appeal was again returned to the appellant under orders of the Deputy Registrar dated 19-2 1965 with the following endorsement:--
' It should be explained how this appeal is within limitation as deficiency in court-fee has been made good after the period of limitation, if not an application for condonation of delay may be filed if so advised.
4. There was another objection but the endorsement regarding the same is not material for deciding the matter before us. The appeal was then refiled along with C. M. No. 653-C of 1965 on or about 25-3-1965. The following endorsement had been made by the Registry of the Court under date 25-3-1965 after the appeal had been refiled along with the application under Section 149 of the Code of Civil Procedure : '
' Deficiency in court-fee made good after expiry of limitation. '
5. The appeal then came up before the Motion Bench on 26-3-1966 and was admitted by Pandit J. with notice of C. M. 653-C of 1965. From the fact that the appeal was admitted before deciding this application, it appears that the learned Judge who admitted the appeal was also inclined to grant this application and to condone the delay in making up the court-fees. In the application for extension of time in making up the court-fees, it has been stated that since the objections with which the petition of appeal had been returned also included a direction about filing a clean copy of the judgment under appeal as the certified copy was too dim to be decipherable and as the Copying Agency of the office of the Advocate General took some time to prepare the requisite copy on account of rush of work and as the brief of the office of the Advocate-General connected with this case was subsequently misplaced, delay was inadvertently caused in making up the court-fees. It has been pressed before us that the delay was due to no fault of the appellant who had made available the necessary amount for paying court-fees in respect of relief of declaration also and it was only by an oversight that the Assistant in the office of the Advocate General failed to affix the same on the petition of appeal. The nonpayment of the necessary amount of Rs. 19.50 is thus ascribed by the appellant to inadvertence and a clerical error and due to extraordinary rush of work in the office of the Advocate-General.
6. It is contended, inter alia, in the written reply to this application filed on behalf of the respondent that the fact that the appellant paid no court-fee on the first item of relief about declaration and paid court-fee only on the item relating to the money decree, shows that the appellant clearly gave up and conceded the relief of declaration and that, therefore, the appeal was barred by time. There is absolutely no merit in this contention of the respondent. It is obvious that the appellant never intended to and never in fact gave up the claim to set aside the declaratory decree against which this appeal had been preferred.
7. Applications under Section 5 of the Limitation Act for extending the period of limitation for filing an appeal where an appellant is prevented by sufficient cause from so doing within time are treated entirely on a different footing than applications under Section 149 of the Civil Procedure Code. Whereas each day's delay in filing an appeal beyond the period of limitation has to be explained by an appellant in cases covered by section 5 of the Limitation Act to show that the appellant was prevented by sufficient cause from filing the appeal on each of those days no such consideration arises in applications under Section 149 of the Code.
It has been held by the Supreme Court in Ganesh Prasad Ray v. Narendra Nath Sen, AIR 1953 SC 431 (though in a different context) that the question of payment of court-fees is primarily a matter between the Government and the person concerned and the other party cannot attack the order on the ground that it takes away his valuable right to plead the bar of limitation. Section 149 of the Code carves out an exception to the general rule contained in Sections 4 and 6 of the Court Fees Act (about no document or proceeding filed in Court amounting to a legal institution or legal presentation of it if it is not affixed with the Court Pees chargeable on it) by giving to the Court concerned a power to permit a litigant to pay the requisite fee at any stage of the proceeding after the deficiently stamped document has been filed therein and by further providing that on deficiency being so made up within the time allowed by the Court, the subsequent payment of the deficient court-fees would have the same effect as if proper and full court-fees had been paid in the first instance. If discretion under Section 149 of the Code of Civil Procedure is exercised by the Court a petition of appeal on which insufficient court fee has been paid, would not become barred by time if it was within time when originally instituted provided full fee leviable on it is paid with the leave of the Court even after the expiry of the period of limitation. An order under this section can be passed by the Court suo motu in the peculiar circumstances of any case even without a formal application being made for the purpose.
8. The principles governing disposal of applications under Section 149 of the Code of Civil Procedure have been repeatedly laid down by this Court and other Courts. The appellant has relied in this connection on Jai Singh Gir v. Sita Ram Singh, AIR 1923 All 349 (1) wherein it was held that an appellate Court has no right to reject an appeal on the ground that it is insufficiently stamped and that when an appellate Court has not exercised its discretion as regards granting time to make up the deficiency in court-fees and rejected the memo of appeal the High Court should set aside the order of rejection
Again it was held in Achut Ramchandra Pai v. Nagappa Bab Balgaya, AIR 1914 Bom 249 that where an appellant is within time in the actual presentation of his memorandum of appeal, though matters cannot be carried further owing to the document being insufficiently stamped, he is entitled to some further time for the payment of court-fees. It was also held in that case by the Division Bench of the Bombay High Court (Batchelor and Shah, JJ.) that the concession referred to in Section 149 of the Code of Civil Procedure is not restricted to cases where there is a bona fide misunderstanding of the law as to valuation; and that the inference is that the Legislature intended that the Court should have a free and unshackled discretion in this matter. In a judgment of the Lahore High Court reported as Jagat Ram v. Kharaiti Ram, AIR 1938 Lah 361. it was held as follows :
' The discretion conferred on the Court by Section 149 is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act. '
9. Applying the principles of the above cases to the present matter before us we have no hesitation in holding that the payment of deficient court-fees on the petition of appeal in me first instance was due to mere inadvertence and that the delay of about 10 days in refilling the appeal after making up the court-fees is not due to any negligence and there is no want of bona fides on the part of the appellant on account of which this delay might have been caused. No suitor or litigant in a free country should be non-suited on a technical matter like if there is no want of bona fides on his part and if the appeal had in fact been presented within lime and there has been some insignificant delay in making up the deficiency in court-fees on account of reasons beyond the control of the appellant. In exercise of our discretion under Section 149 of the Code of Civil Procedure we, therefore, allow the appellant to pay the deficient court-fees of Rs. 19.50 upto the 17th of February. 1965 (the date on which the appeal was in fact refiled after making up the deficiency) and condone the delay in making up the court-fees upto that date. The court-fees having been already made up the appeal shall be deemed to have been filed properly stamped within lime in the first instance.
10. On account of an error on the part of the office of the appellant the respondent had to boar the expenses of opposing this application. The respondent is certainly not at fault for the error of the appellant. The appellant must, therefore, pay the costs to the respondent for today's hearing which are assessed at Rs. 50. This application is allowed subject to the payment of Rs. 50 us costs to the respondent or his counsel.
Inder Dev Dua, J.
11. I agree