1. This is an application under Sections 148 and 149 of the Code of Civil Procedure for condensation of delay in supplying the deficiency in court-fees.
2. This application for condensation of delay arose in the following circumstances.
The judgment and decree was passed by the trial Court on 17th August, 1977. The appellant applied for certified copy of the judgment and decree on 20th August, 1977 and the same was ready for delivery on 23rd September, 1977.
The common case of the parties is that after taking into account the time spent in obtaining certified copies of the judgment and the decree of the trial court, the appeal could be filed up-till 19th December, 1977.The appeal was filed on 19th December 1977 on a court-fee of Rs.5/- only. The court-fee payable was Rs.2783-20.
The appeal was scrutinised by the Registry and, apart from other defects, it was noticed that the appeal was insufficiently stamped and it was also noticed in objection No.6 'receipt of Rs.100/- as advance charges should be deposited'.
It appears that on the same date, the appellant deposited Rs.100/- in the Treasury of the High Court filed the receipt on record it also appears on the same sheet where the Registry had raised objections that there is a note by the counsel:
The appeal again came before the Deputy Registrar who noted: 'what about limitation'? This note is dated 9-1-1978.
3. It again appears from the record that the appellant filed the aforesaid application under Sections 148 and 149of the Code of Civil Procedure on 6-1-1978. In this application, it was stated that the appeal had been filed on 19th December, 1977 on the court-fee of Rs.5/-. The appeal required a court-fee of Rs.2783-20 and the appellant 'is now filing the requisite court-fee'. It was claimed in the application that the court-fee of Rs.2783-20 is only available in the Treasury which closes at 1.30 p. m. and the instructions to file the appeal were received by the counsel only after the treasury had closed. The court-fee papers were not available elsewhere.
4. It is also stated that since 19th December, 1977 was the last date for filing the appeal, the appeal was filed as above and it was prayed that the delay in filing the court-fee may be condoned.
5. When this appeal was posted before me for admission I decided to first give notice only of the C.M.38 of 1978 for 28-2-78 by my order dated 25-1-1978.
6. The application has been opposed on behalf of respondent No.1. In the reply, it was pointed out that even according to the appellant, limitation expired on 19th December, 1977. Nothing is disclosed in the application why stamp papers could not be purchased before the expiry of limitation. The further objection taken is that no sufficient cause is disclosed nor has any reason been given for not filing the appeal with the required court-fee stamps before 6-1-1978 although the stamps had been purchased on 28-12-1977.
7. Another objection taken is that in accordance with the High Court Rules and Orders, the records are required to be printed and the appellant in such a case was required to deposit the printing charges of Rs.100/- and the receipt of the deposit of the printing charges was required to, be attached with the memo of appeal and since the deposit of the printing charges was made only on 28th December, 1977, there was no proper presentation of the appeal within time.
8. I will first deal with & question as to the condensation of delay in making up the deficiency of court-fees.
9. There can be no doubt that the appellant has every right to file the appeal even on the last date and also purchase the court-fee stamps on the same date. It also transpires that the court hours for filing appeals etc. are not the same as the hours of the Treasury. The stamps of higher denomination as were required in the present case, are normally available only from the Treasury and, thereforee, as explained in the application the stamps could not be purchased on the last date but were purchased on 28th December, 1977 and filed in court on 6-1-1978. The High Court was closed for Christmas break and the court-fee stamps ought to have been filed soon after the reopening of the court.
10. In dealing with the application for condensation of delay for making good the deficiency in court-fees, it is the settled practice of this Court that the discretion conferred an the Court is normally expected to be exercised in favor of the litigant except in case of contumacious delay or positive mala fides or for reasons of similar type. The delay occasioned in the present case in supplying the deficiency in court-fee is neither contumacious nor mala fide. It is true that the court-fee stamps could be purchased before the closing of the High Court but they were purchased on 28th December, 1977 when the High Court was closed and were filed in the Court on 6-1-1978. It appears from the affidavit accompanying the application that the affidavit was sworn on 3-1-1978 and, thereforee, it appears that thereafter the delay was caused in the office of the Advocate. I would, thereforee, in exercise of my discretion, condone the delay in supplying the deficiency in court-fee.
11. I will now deal with the second objection of the learned counsel for the respondent about the proper presentation of the appeal within time. The objection of the learned counsel for the respondent is that under R.9 of Chapter 2-A of Vol. V of the High Court Rules and Orders (Hereinafter called the Rule C) the appellant, apart from complying with the requirements of Order 41, C.P.C. is also required in an appeal like the present one to attach a receipt for a sum of Rs.100/- which should be deposited with the Treasury of the High Court to cover the cost of the printing of the record and since this receipt was not attached with the memo of appeal, there was no proper presentation ad the appeal on 19th December, 1977.
12. Relevant part of Rule 9, Rules 10 and 11 of the Rules read as under:
'9. In every appeal in which under these rules a record has to be Printed, the appellant shall, with his appeal attach a receipt for a sum of one hundred rupees which should be deposited with the Treasurer of the High Court to cover the cost of printing the record. No first appeal from a decree shall be received unless it is accompanied by such receipt . . . . . . . . . . . . . .'
13. (a) If the deposit required under R.9 proves insufficient to cover the cost of that part of the printed record which is to be borne by the appellant, the Deputy Registrar may, by a notice in writing, require that such further deposit as seems to him necessary shall he made within one month.
(b) If such further deposit be not made within one month of the date of receipt of the notice, the appeal shall, on the expiry of that period, be laid before a judge for orders who may, in his discretion, grant further time or dismiss the appeal. The judge may further in his discretion discharge or modify any ad interim orders passed earlier in the case. The case shall he laid before a judge for orders every time the default is repeated. If the default is made by the respondent then the judge may pass an order that the paper book be prepared according to appellant'(s) list or he may pass such other orders as he thinks fit.
14. The period fixed by Rule 10 of the payment of the deposit may, on cause being shown in an application duly stamped, be enlarged by an order of the Court so as to permit the amount of such deposit to be paid by Installments'.
15. It is submitted that for proper presentation of the appeal under Rule 9, the appeal must be accompanied by the requisite receipt. It is also contended that where for additional printing charges, if the initial deposit under Rule 9 is insufficient. notice is required to be given and thereafter power is also given to extend the time, both under Rule 10 as well as under Rule 11.
16. It is also submitted that there Is no such power conferred on the court for extending time so far as the initial deposit of Rs.100/- is concerned. It is also pointed out that under Rule 2 (b) of Chapter 1-A of the Rules, in a second appeal, in addition to documents prescribed under Order 41, R.1, C.P.C., the appellant of the first instance it has always been the practice of this Court to hold that the appeal has not been validly presented unless a copy of the judgment of the court of the first instance is also filed within time. In case the copy is not available for an reason till the expiry of the limitation after taking into account the time spent in obtaining the certified copies of the judgment and decree under appeal the appellant has to make out a sufficient cause for condensation of delay before the judgment of the court of the first instance is taken on record.
17. The argument thus proceeds like this that just like C1. (b) of R.3 of Chapter 1-A Rule 9 lays down a condition precedent for valid presentation of a regular first appeal where the record is required to be printed and unless the appellant can make out sufficient cause for delay in depositing the printing charges, the appeal must be held to have not been properly presented nor the delay in depositing the printing charges should be condoned unless sufficient cause is made out.
18. I am afraid the analogy of clause (b) of R.2 of Chap. is does not apply. Whereas Clause (b) of Rule 2 of Chapter) 1-A expressly mentions 'memorandum of appeal', the expression used in Rule 9 of Chapter 2-A Vol. V talks of 'appeal'. The Supreme Court has brought out the distinction between 'memorandum of appeal' and 'appeal' in the judgment reported as Lakshmiratan Engineering Works Ltd. v. Asstt. Commr. (judicial) I, Sales Tax. Kanpur, : 1SCR505 . One need not discuss the point further as the point is concluded against the submission of Mr. Sultan Singh by the Division Bench of this Court in Shankar Dass v. Smt. Shanti Devi, (1969) 71 Pan Lr 155, where the learned judges noticed that provisions like Rule 9 aforesaid are merely provisions for expediting the preparation of paper-books in Regular First Appeals by insisting that deposit should be made prior to the presentation of the appeal. Strictly speaking, the right of appeal is given by Section 96 of the Code and Rule 9 does not relate to presentation of memorandum of, appeals but only to the preparation of paper-books for the hearing of the appeals which must have already been presented and, thereforee, in so far as Rule 9 requires the receipt of advance printing charges to be filed, it should be considered as directory and not mandatory.
19. It was then submitted by Mr. Sultan Singh that the appeal is also not properly presented inasmuch the appeal is against a decree for payment of money and the appellant has neither deposited the amount in dispute in appeal nor furnished such security in respect thereof as contemplated by sub-r. (3) of Rule 1 of Order 41 of the Code of Civil Procedure. It is submitted that unless the decretal amount is deposited before filing memorandum of appeal or security furnished in respect thereof the appeal could not be deemed to have been validly presented.
Sub-rule (3) of Rule 1 of Order 41 has been inserted by Act 104 of 1976 by S. 87 thereof, with effect from 1-2-1977. It reads as under:
'(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.'
Rule 5 of Order 41 has also been amended by the same Amending Act.
The Code of Civil Procedure (Amendment) Bill, 1974, (Bill No.27 of 1974) as introduced in Parliament contained inter alia, the following relevant provision:
'In the First Schedule, in Order XLI.-
(i) in Rule 1,
(a) to sub-rule (1), the following proviso shall be added, namely: -
'Provided that where two or more suits have been tried together and a common judgment has been delivered thereforee and two or more appeals are filed against any decree covered by the judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment'.
(b) after sub-rule (2). the following sub-rule shall be inserted, namely: -
'(3) Where the appeal is against an order made in execution of a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit';
(ii) in Rule 3. after sub-rule (1). the following sub-rule shall he inserted, namely:-
(1A) Where the appellant fails to make deposit or furnish security specified in subrule (3) of rule 1, the Court shall reject the memorandum of Appeal .............
The bill was referred to for consideration of the joint Committee and the joint Committee in its report submitted to the Lok Sabha on 1-4-1976 and as published in Gazette of India Extraordinary, Part 11, Section 2 in paragraph 65 thereof stated as under: -
'65. Clause 87 (original clause 90). -
(i) The Committee note that under the proposed new sub-rule (1A) of Rule 3 in Order Xli, if the appellant fails either to deposit the amount disputed in the appeal or to furnish security for such amount, the memorandum of appeal shall be rejected The committee feel that such a provision will deprive a judgment-debtor having a good case, to pursue the appeal on account of his inability to deposit the disputed amount or to furnish security for such amount.
The Committee are, thereforee, of the opinion that in order to see that justice is done to both the parties, the proposed sub-rule might be amended in such a way that neither the judgment-debtor is deprived of his right to pursue the appeal nor the decree-holder is deprived of the remedy. Proposed sub-rule (1A) has been amended to provide that stay of execution of the decree will not be granted unless the deposit is made or security is furnished and has been transposed as sub-rule (5) of Rule 5.
(ii) The Committee are of the view that the court should not be empowered to grant ad interim stay of execution of the decree unless the court has, after hearing under Rule 11 of the order Xli, decided to hear the appeal. Sub-rule (3) in-the proposed Rule 3A of Order Xli has been inserted accordingly.
(iii) The Explanationn to sub-rule (1) of Rule 5 provides that an order made by an Appellate Court for the stay of execution of a decree shall be effective from the date of communication of the order to the court of first instance, but an affidavit sworn by a pleader, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court, shall be acted upon by the court of first instance. The Committee feel that the pleader should not be required to file an affidavit for the purpose and it would be sufficient if the affidavit is sworn by the appellant. The Explanationn has been amended accordingly.
(iv) Consequent upon the amendment made by the Committee to sub-section (2) of Section 2 of the Code, sub-rule (4) of Rule 11 of order Xli has been omitted'.
20. After this report of the joint Committee, we find that the proposed Rule 1A was omitted from the Act as passed by Parliament and rule (5) of Order 41 of the Code was suitably amended.
21. A bare reading of the report of the joint Committee and thereafter the omission of Rule 1A from Order 41 as proposed in the Bill clearly shows that the intention of the Parliament was not to make the deposit of the decretal amount or the furnishing of the security before filing of appeal against money decree as a condition precedent for valid presentation of the appeal. There is thus no force in this submission as well.
22. Reading sub-rule (8) of Rule 1 of the Order 41 along with sub-rule (5) of the R.5, of the Code, all that can be said is that so long as the decretal amount is not deposited or security is not furnished. the Court shall not make order staying the execution of the decree.
23. C.M.38 of 1978 is accordingly accepted.
24. Appeal accepted.