1. The plaintiff, who is the appellant in this Court, brought a suit on insufficient court-fee and he was granted a decree. The defect was not noticed during the course of the trial. In appeal to the Court of the Subordinate Judge of Vellore, he was called upon to pay the deficient court-fee under Section 12 of the Court-Fees Act and as he did not do so within the time allowed, Section 10(2) was applied and his suit dismissed. This second appeal has, therefore, been preferred, the plaintiff contending that Section 12 of the Court-Fees Act does not apply to his case.
2. The argument of the learned advocate for the plaintiff in this Court is that Section 12(2) only applies to cases where the plaintiff is the appellant. This sub-section runs:
But whenever any such suit comes before a Court of Appeal...if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided
3. If this sub-section had ended with the word 'decided', I am quite sure there would never have been any doubt at all that it applies to all the parties to the appeal. Its provisions are very wide and it definitely refers to the party by whom the fee has been paid. If this sub-section has been intended to apply only to a case where the deficiency was by the appellant, it would not have been necessary to say 'the party by whom such fee has been paid.' The simple word 'appellant' would have been sufficient. A doubt has however arisen because of the last few words of the sub-section 'and the provisions of Section 10, para. 2 shall apply'. Section 10, para. 2 applies only to suits. It is argued that if the word 'appeal' replaces the word 'suit' in Section 10(2), then the appeal would have to be dismissed, which would work a grave injustice on the appellant when the respondent is the defaulter. That was the reasoning that impressed the learned Judge who decided Narain Singh v. Chaturbhuj Singh I.L.R.(1898) 20 All. 362. The matter came before a Full Bench of the Allahabad High Court in Mohan Lal v. Nand Kishore I.L.R.(1905) 28 All. 270 , where the argument of Narain Singh v. Chaturbhuj Singh I.L.R.(1898) 20 All. 362 was adopted. It was therefore held that Section 12(2) could not apply to cases where the plaintiff was not the appellant and that there was therefore no provision in the Court-Fees Act for the recovery of deficient court-fee from a plaintiff-respondent. What a Court could do, the learned Judges said, was to suspend the execution of the decree until the deficit court-fee was paid. The difficulty of that course is that it would be in the interests of a plaintiff who has made default in the payment of proper court-fee to await the result of the appeal. If he was unsuccessful in the appeal, then obviously he would certainly not pay court-fee. This difficulty was seen in Baijnath v. Dhani Ram I.L.R. (1929) 51 Al. 886 and the learned Judges there held that the course suggested in the earlier Allahabad cases was not the only one. If the plaintiff did not pay the deficit court-fee when called upon to do so by the appellate Court, a contempt of Court was committed and the appellate Court could therefore refuse to hear the respondent or his advocate and dispose of the appeal in his absence.
4. There is no authority in any of the Codes (or previously reported decisions as far as I know) for the adoption of the procedure suggested in these cases. Section 12(2), except for the last few words, provides no difficulty at all; and the sub-section clearly enough applies to all cases where a deficient court-fee has been paid in the first Court, whether by the appellant or by any other party. Is it possible that because of some little difficulty in applying the wording of Section 10(2) to appeals by a defendant, the rest of the section is nullified and can have no application at all to cases where the plaintiff is not the appellant? Where a section primarily intended to apply to suits is also to be applied to appeals, the ordinary canon of construction is that the necessary changes in wording should be made so as to make the section good sense. If that is done, I do not think there is any difficulty in understanding Section 10(2). Several decisions of other High Courts have been quoted in which the Allahabad decisions have been dissented from. Brij Krishna Das v. Murli Rai (1919) 56 I.C. 316, was a Bench decision of the Patna High Court. Dyal Singh v. Ram Rakha (1912) 15 I.C. 463 is a Full Bench decision of the Punjab Chief Court. Shama Soondary V. Hurro Soondary I.L.R.(1881) 7 Cal. 348 is a Bench decision of the Calcutta High Court. Ram Nidh v. Balkaran Singh (1920) 60 I.C. 654, is a decision of a single Judge of the Oudh Chief Court. In all these cases the Allahabad decisions have been dissented from; and it was held that in applying Section 10(2) to appeals and reading it with Section 12(2) the word 'suit' should be deemed to include 'appeals'. If this is done, there is no difficulty in interpreting the section. It has been pointed out that in Subbaiya Pandaram v. Mohamad Mustapha Maracayar (1916) 32 M.L.J. 85 : 40 I.C. 50, a single Judge of the Patna High Court followed the Allahabad decisions. He did so, however, without discussing the matter in question here and that decision cannot be good law in Patna in view of the Bench decision in Brij Krishna Das v. Murli Rai (1919) 56 I.C. 316. It has been moreover pointed out by Mr. Visvanatha Aiyar for the respondents that the actual wording of Section 12(2) shows that the appeal is considered as an extension of the suit for the sub-section begins 'But whenever any such suit comes before the Court on appeal'. If we remember this, there is really no necessity for altering the word 'suit' to 'appeal' in Section 10(2) when we apply it to cases where the court-fee has not been paid by a plaintiff-respondent.
5. The appeal is accordingly dismissed with costs.