P.B. Mukharji, J.
1. This is the plaintiff's application for an order granting leave to him to pay the filing fees in respect of (1) exhibits, (2) depositions and (3) minutes of the proceedings had before the special Referee and that upon payment of filing fees the said exhibits, depositions and minutes be treated as properly filed with retrospective effect from the date when they should have been filed along with the first report of the Referee dated 4-5-1949.
2. There is little substantial objection to the order. As the parties made the documents exhibits, as the depositions were before the special Referee and as the minutes of the proceedings are the official records o.f what took place before the special Referee, bare justice demands that they should be allowed to be read as part of the proceedings in this matter. It will be an outright denial of justice now to say that exhibits actually tendered and made exhibits by both the parties should not be treated as exhibits and not read as evidence or that the depositions taken before the Special Referee and relied upon by both the parties should not be read as depositions or that the minutes of the Special Referee recording the proceedings before him should not be similarly treated. The order should therefore follow as a matter of course. If there was any question of any document which was not actually tendered & exhibited by any of the parties or if there was any documents which was not the depositions themselves or the minutes of the proceedings before the Court before which the proceedings took place, then there might have been other considerations. But such other considerations are entirely absent so far as this application is concerned and which is made only in respect of actual (1) exhibit, (2) depositions and (3) minutes.
3. It will be necessary to make here a few observations on the practice, the procedure and the Rules concerning the payment of filing fees in respect of exhibits, depositions and minutes as prevailing on the Original Side, because arguments at the Bar appeared to proceed from a misapprehension of the same.
4. Now documentary exhibits on the Original Side appear on the record in tne following manner. When a party proves a document through a witness, he tenders that document after such proof and then the Court marks it as exhibit. Ex hypothesi, exhibit means a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of the proceeding in which it is filed. Any question regarding the admissibility of that particular document in evidence for the purposes of the proceeding must be decided at the time when the document is tendered and before it is actually marked as an exhibit. Not one of the exihibits in this proceeding was objected to as being inadmissible in evidence at the time when it was tendered.
5. Prom the point, of view of admissibility of evidence, therefore, not one of these documentary exhibits has been impeached. Then the only other question is whether these exhibits can be used as records in Court on the ground that the necessary court-fees on these exhibits have not been paid. That is, in my view, a very secondary question of revenue. I say secondary advisedly because initial non-payment and subsequent payment of filing fees should not be confused with such instances under the Stamp Act and Evidence Act where non-payment of stamp or fee would make a document inadmissible in evidence for all purposes and cannot be cured by impounding and calling for subsequent payment of stamp or fees. When justice demands that those exhibits, actual depositions of witnesses given on oath before the Referee and the very minutes of the Court of the Referee should be used and in fact had been used by both the parties before the Referee as well as before me, then I shall be loath to exclude them now on the ground of revenue not haying been paid unless the Statute completely prohibits such a course. Neither Section 4, Court-fees Act which incidentally does not apply to the Original Side, nor the Rules of the Original Side of this Court, in my judgment, prohibit the payment of filing fees in respect of (1) exhibits, (2) depositions and (3) minutes, subsequent to the time when the exhibits are tendered, or depositions are taken down or minutes are recorded. In fact, so far as the Original Side of this Court is concerned, it is governed by its own Rules for payment of filing fees, and the uniform practice has been that the documents are filed and their filing fees are generally realised, subsequently. This practice is the result of necessity and good sense alike. It is not illegal.
6. A short analysis of some of the relevant Rules bearing on this point is necessary to explain the purpose and the practice of the Original Side procedure of realising filing fees.
7. Rule 48 of Chapter 34 directs a suitor appearing in person to affix court-fees on the deposition of each witness examined on his behalf and for filing exhibits put on his behalf within a week after the termination of the trial. Rule 49 extends similar facilities to the Attorneys to pay court-fee stamps on depositions and exhibits within a week atfer the termination of trial. These Rules, therefore, are clear that when such deposition is being given or even when a document is being tendered and made an exhibit, the court-fees need not be paid at that very time but may be paid subsequently within a week after the termination of trial. Under Rule 46 of Chapter 36 such time again can be enlarged or abridged by the Court or the Judge. Rule 50 of Chapter 36 provides for the case of default. It is there provided that in the event of non-compliance with R. 49 notice should be given to the defaulting Attorney that unless the fees were paid within a fortnight from the service of the notice the Court will prohibit him from acting as an Attorney. Rules of this Court therefore expressly recognise subsequent payment of court-fees or filing fees in respect of exhibits and depositions and make express provision for their subsequent realisation after the trial is over.
8. These Rules dispense with instantaneous payment of court-fee either at the time when the i deposition is being taken or at the time when the document is being tendered as an exhibit on practical grounds of administration. These Rules are wholesome provisions and are guided by practical considerations. Court-fees or filing fees have to be calculated by folious and number of documents tendered. Therefore instantaneous payment of Court fees on an exhibit when it is being tendered in evidence cannot be paid because the folios and number of documents must be calculated first and then the amount of fees determined. This is the practical reason for making these Rules for subsequent payment and realisation of court-fees. These practical considerations are best illustrated by a reference to a few more Rules which will show the need and origin of such practice. Rule 26 of Chapter 4 makes the provision that except with special leave no document in a language other than English shall be accepted in evidence unless translated in accordance with these Rules. Therefore, when the Court grants a special leave to accept such a document, the stamps on such. document are always collected as a matter of practice when the document is translated and not when the document is tendered. Similarly, against, under Chapter 19 when guardian-ad-litem is appointed subject to his filing an affidavit of competency, the affidavit is filed at the time of the completion of the order and the court-fee or stamp is realised' then. Besides, terms of settlement and agreed minutes are very often tendered before the Court without the filing fees being paid right then aft the time when they are tendered but such fees are always realised at the time of the completion of the relevant decree or order containing such terms. In interlocutory applications, specially those under Chapter 13-A, papers sometimes have to be presented before the Court where proper court-fee stamps cannot be calculated on the spot and the stamps are, in such events, always realised at the completion of the decree or order. Sometimes exhibits and affidavits are tendered, with stamps which prove to be insufficient later on, and then the deficit stamps are always collected by the departments at the time either of their drawing up or at the time of their filing.
9. Neither the Court-fees Act nor the Rules of the Original Side of the High Court state that the exhibit or the depositions or the minutes must be stamped right at the moment when they are tendered as exhibit or at the moment when the witness is giving his deposition or at the moment when the Court minutes are being taken down. That would make administration impossible and will be to my mind a very impracticable and perhaps an impossible course in day to day administration. As pointed out by Mookerjee J. in the --Goods of Harriett Teviot Kerr, deceased, 18 Cal WN 121: (AIR 1914 Cal 40) (A), that the true mode of interpreting a Statute like the Court-fees Act which had been repeatedly amended was not to consider individual sections but to take them as a whole and to give effect to the legislative intent upon a particular matter. Therefore the Rules on the Original Side always recognise that time appointed thereunder can always be relaxed by the Judge for the purpose of realising either unpaid or insufficiently paid court-fees or stamps at any time before the order is either completed or given effect to.
10. On a point such as this, I should take the practice of the Court as the law. This has besn the practice on the Original Side so far as I know for the last 100 years or even more. My own experience at the Bench and the Bar which covers a period of about a quarter of a century is the same. I should, therefore, follow the principle of 'cursus curiae est lex curiae', because I find that the practice is not illegal and is justified on grounds of convenience and good practical administration. It is a judicially recognised practice to allow a party to put in the court-fee and use a document which has been used and relied upon by the parties and by the Courts below.
11. In -- 'Maneklal Vadilal v. Chandulal Balabhai Shah', reported in : AIR1926Bom343 , Macleod C. J. and Coyajee, J. deciding a question of set-off on which proper court-fee had not been paid, observed :
'As a matter of fact, in a case of this nature, when once a document is admitted by the lower Court, it is not for the plaintiff to say that the document should be struck off from the record, the Court is entitled to allow the defendant, on payment of the proper fee to rely upon the set-off'.
Leach J. of the Rangoon High Court deciding a Court-fees Act reference in -- 'Maung Ba Thaw v. M. S. V. M. V. Chettiar', reported in 13 Rang 158: (AIR 1935 Rang 460) (C), said that the Court-fees Act, 1870 did not apply to cases coming before the High Court in the exercise of its ordinary original civil jurisdiction or in the exercise of its jurisdiction as regards appeals from judgments passed in such cases and held that the High Court had full power to regulate its own procedure in this respect. In fact the learned Judge there allowed a document which was the memorandum of appeal in that case to be returned to the appellants to enable them to affix the proper court-fee stamp. In the case of 'Syed Ambur All v. Kali Chand Doss', 24 WR (Civ.) 258 (D), a Division Bench of this Court of Markly and Morris JJ. recognised this practice as early as 1875. There the learned Judges said that it was the duty of the Deputy Registrar to ask the parties to put in the deficient court-fees & when there was any difference of views between him & the party, his duty was not to reject the document (in that case it was a petition of appeal) but the difference should be referred to the Taxing Officer and then if the difference exists to place it before the Court.
12. I should, therefore, give leave to the plaintiff to pay the filing fees in respect of the exhibits, depositions and minutes of proceedings before the Special Referee and order that upon payment of such filing fees the said exhibits, depositions and minutes be treated as properly filed with retrospective effect from the date on which they should have been filed along with the first report of the Referee dated 4-5-1949. The plaintiff petitioner is allowed to pay in the filing fees for the exhibit, depositions and minutes as aforesaid within a fortnight from the date such fees are assessed or determined by the office and notified to the plaintiff.
13. I make no order as to costs on this application.