(1) This execution second appeal is directed against the order of the learned Additional District Judge dated 5-10-1962 holding the appeal (Misc. Civil Appeal No. 113 of 1961) presented in his Court against the order of the learned Senior Subordinate Judge dated 3-6-1957 to be barred by limitation because the order appealed against did nto bear the proper Court-fee.
(2) The circumstances in which the appeal was dismissed as barred by time by the learned Additional District Judge are that from the order of the learned Senior Subordinate Judge dated 3-6-1957, a revision was presented in this Court on 18-10-1957. This was referred to a Full Bench by a learned Single Judge of the Punjab High Court in April, 1961 and the Full Bench on 8-12-1961 held that no revision was competent in this Court because the impugned order was appealable. In this Court, the revision had nto been converted into an appeal by the learned Single Judge because, I am informed, the learned Single Judge felt that the appeal would have to be presented in the lower Appellate Court. It was in these circumstances that the appeal was presented in the lower Appellate Court on 11-12-1961. I am informed that 8th of December, 1961 was a Friday and 10th of December was a Sunday. About 9th of December, there is some controversy as the appellant's counsel states that it was second Saturday and , thereforee a close day, whereas the respondent's counsel has submitted that it was nto a close day because in those days second Saturdays were nto declared as holidays.
(3) In the lower Appellate Court, as its order shows, the order appealed against bore Court-fee stamp of Rs. 1.25np. whereas it required a Court-fee stamp of Rs.2.65np. It was submitted in the Court below on behalf of the counsel for the appellant in that Court that the suit which had given rise to the execution proceedings had been filed in 1947 when only a Court-fee of Re. 1 was required to be affixed on the copy of the decree or order having the force of a decree and since execution proceedings were a continuation of the suit, the same Court-fee was payable. This plea was nto accepted and the order appealed from was held to require a Court-fee of Rs. 2.65np. Failure on the part of the appellant in the lower Appellate Court to affix proper Court-fee stamp on the copy of the order appealed against was considered to be due to the negligence of the counsel's clerk and a valuable right having accrued in favor of the successful party in the executing Court, the appeal was dismissed, as ntoiced earlier.
(4) The appellant in the Court below had also made an application under Section 149, Code of Civil Procedure, praying for permission to make good the deficiency in Court-fee, but curiously enough, the learned Additional District Judge felt that in the absence of a prayer for extending the period of limitation, he could nto permit the deficiency to be made good. He also observed that there was no affidavit indicating the circumstances under which the proper Court-fee had nto been filed originally, but he forgto that before him a legal ground had been sought to be made out that the appellant had felt that under the law the same Court-fee was livable as was permissible in 1947.
(5) It may also be pointed out at this stage that according to the order of the learned Additional District Judge, an application was actually presented in his Court by the appellant on 4-10-1962 with which was attached a Court-fee label of Rs. 1.40np., the amount of deficiency in the requisite amount, but this was apparently considered to be unfair to the respondent in that Court .
(6) In my opinion, the view taken by the learned Additional District Judge is difficult to sustain. As observed by a Full Bench of the Lahore High Court in Jagat Ram v. Misar Kharatiti ram, Air 1938 Lah 361, the discretion conferred on the Court by Section 149 is normally expected to be exercised in favor of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides has in this connection to be considered from the point of view of its definition as contained in the General Clauses Act and nto as contained in the Limitation Act. A thing should be presumed to be done bona fide if it is done honestly whether it is done negligently or nto, for the purposes of judging whether the discretion under Section 149 should or should nto be exercised in favor of the litigant. In the present case, it is nto shown, and indeed there is no suggestion that there were any mala fides on the part of the appellant. The only thing that has been pressed, and pressed very strongly, on behalf of the respondent before me is that there was plenty of time at the disposal of the appellant and he could have very well obtained a copy of the decree earlier and also taken care to affix the requisite amount of Court-fee on the order appealed from. This plea is fully met by the ratio of the Full Bench decision in Jagat Ram's case, Air 1938 Lah 361. Shri Tarogi Narain has relied on a Single Bench decision of the Lahore High Court in Shahadat v. Hukam Singh, Air 1924 Lah 401, in which on an appeal having been filed without the order appealed against being stamped and the same having been returned and refiled again, with the proper stamp, after the period of limitation, it was observed that the counsel filing an appeal ought to see that all the documents requiring stamp are properly stamped. The counsel cannto shelter himself behind his clerk, for he must be held responsible for his clerk's carelessness. The learned counsel has also referred me to Custodian Evacuee Property, Punjab v. Parbhu Dayal, , in which following the decision in Shahdat's case, it was observed that where the trial Court's judgment was nto stamped, it could nto be deemed to have been filed at all and the same could nto be allowed to be stamped after the period of limitation had expired.
(7) Apart from the fact that the ratio of the Full Bench decision in Jagar Ram's case, Air 1938 Lah 361, has taken away a lto from the value of the approach adopted by the learned Single Judge in Shahadat's case, Air 1924 Lah 401, I find that in Parbhu Dayal's case, , there was no question of any application under Section 149 of the Code of Civil Procedure and it was at the time of hearing that it was found that the judgment of the trial Court attached with the memorandum of appeal was nto stamped. A case of this type, obviously, raises somewhat different consideration from those in which before the actual hearing, an application is made under Section 149, Civil Procedure Code, and the amount of Court-fee making good the deficiency is attached with the petition. Incidentally, it may be pointed out that a learned Single Judge of this Court has very recently in Uttam Chand Kankaria v. Kanwal Kishore and Co., E. S. A. No. 146-D of 1962 decided on 6-4-1967 (1967 Delhi High Court Ntoes No. 26 (page 27 (Delhi)), followed with respect the Full Bench decision of the Lahore High Court in Jagat Ram's case, Air 1938 Lah 361, distinguishing the Single Bench decision of that Court in Shahadat's case, Air 1924 Lah 401. Reference by the learned counsel for the respondent to Shamlal Thakar Dass v. Punjab National Bank, , is of little avail because that decision deals with the scope and effect of Section 5, Limitation Act and nto with Section 149, Code of Civil Procedure.
(8) On the facts and circumstances of the present case, when the deficient amount of Court-fee to be affixed on the copy of the order appealed from was actually attached with the application under Section 149, Code of Civil Procedure, in my opinion, it would have been a more appropriate and more satisfactory exercise of judicial discretion to allow the deficiency to be made good so that the controversy was heard on the merits rather than no throw out the appeal on this ground. The question of Court-fee is by and large a matter between the state, the appellant and the Court , though of course the incompetency of the appeal on the ground of absence of or inadequacy of Court-fee stamps is always open to the opposing litigant to urge. In the case in hand, it is nto shown that the office of the lower Appellate Court ntoiced the deficiency in the Court-fee affixed on the order appealed against and called upon the appellant in that Court to make good the deficiency. The officer receiving or scrutinising the memorandum of appeal in that Court had a duty to look at the competency of the appeal, including the payment of Court-fee, in respect of the memorandum of appeal and the documents attached thereto. The copy of the order appealed from in the lower Appellate Court was apparently considered by the office of that Court to be properly stamped because they raised no objection and this factor is also nto wholly irrelevant while considering the question of the exercise of judicial discretion under Section 149, Civil Procedure Code. Of course, acceptance, by the office, of the memorandum of appeal, cannto be conclusive on the point.
(9) For the reasons foregoing, I would allow this appeal and setting aside the order of the Court below, remit the case back to the lower Appellate Court for decision of the appeal on the remaining points. I am expressing no opinion on the merits or on the toher preliminary objections which may be raised at the hearing of the appeal. I am only concerned with the question of removing the infirmity in the order appealed from in the lower Appellate Court in respect of the amount of Court-fee to be affixed thereon. I am nto deciding any toher point which may be raised by the parties in the lower Appellate Court. There will be no order as to costs of these proceedings. Parties are directed to appear in the lower Appellate Court on 9-1-1968, when antoher short date would be given for the disposal of the appeal in accordance with law. No. costs in this Court.
(10) Case remitted.