Chamier, C.J:— In one of these cases a decree was passed against the appellants for recovery of immovable property and for mesne profits, together valued at Rs. 5,449-8-0. The court-fee paid on the plaint was Rs. 295. In the other case a decree was passed against the appellants for recovery of immovable property and for mesne profits together valued at Rs. 6,120. The court-fee paid on the plaint was Rs. 325. The period of limitation for both appeals expired on Monday, 28th May, on which date in consequence of the absence of the Registrar the appellants presented their appeals to this Bench. They paid on each appeal a court-fee of Rs. 10. In a somewhat similar case a few days ago the appellant filed his appeal on a two rupee stamp, admitting at the time that there was a deficiency of Rs. 223. The appellants in the cases before us were admittedly aware that the court-fee payable on one memorandum of appeal was was Rs. 295 and on the other Rs. 325 and they have not put forward any reason for not having paid the proper court-fees. It is suggested that it is the practice of the Courts in such cases to receive the appeal and to allow the appellant time to make good the deficiency.
2. Section 4 of the Court-fees Act, 1870, for bids a High Court to receive a memorandum of appeal unless the proper court-fee is paid. S. 5 contains a similar provision with regard to other Courts. Section 28 of the same Act which obviously does not apply to the cases now before us, makes provision for stamping a document which has through mistake or inadvertence been received filed or used by a Court though unstamped or insufficiently stamped. Section 149 of the CPC, provides that where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may in its discretion at any stage allow the person by whom such fee is payable to pay the whole or part, as the case may be, of such court-fee and upon such payment the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.
3. It has been held that in the case of a plaint insufficiently stamped the Court is bound under O. 7, R. 11 (S. 54 of the Code of 1882) to give time to make good the deficiency. I doubt whether the legislature intended that time should be given as a matter of course even where the plaintiff has deliberately and without any excuse paid an insufficient court fee, but it is too late to question the rulings on this point. Some Courts held that S. 54 of the Code of 1882 was by S. 582 of that Code made applicable to an appeal. The contrary view was expressed by the Full Bench in Balkaran Rai v. Gobind Nath Tewari(1) and a new S. 582-A was then added to that Code. S. 149 of the present Code takes the place of S. 582-A of the Code of 1882 and vests a very wide discretion in the Court, but, in my opinion, S. 149 should not be construed in such a way as to nullify the express provisions of Section 4 of the Court-fees Act. When the amount of the court-fee payable is open to doubt or the amount of the fee cannot be ascertained by the Court till the record is received or it appears that the appellant has made an honest attempt to comply with the law, the Court may properly receive the appeal and allow time for the deficiency, if any, to be made good. In the cases before us the appellants have deliberately and to suit their own convenience paid on their appeals insufficient court-fees, in fact they have paid only a small fraction of the fees which they admit are payable by them. In such cases the Court is not, in my opinion, bound to receive the appeal and give the appellants time to make good the deficiency. Assuming that the Court has power to receive these appeals and allow time for the deficiency to be made good I think that, we should be exercising our discretion in an unreasonable manner if we were to do so.
4. It is said that considerable difficulties are experienced by litigants in obtaining court-fees for use in this Court. I fear that this is true. As matters now stand a court-fee stamp of a value higher than Rs. 50 cannot be procured in the High Court at all. One result of this is that parties frequently file an appeal upon a court-fee stamped sheet of Rs. 50 when they know that the proper fee is much larger. When the stamp reporter brings the deficiency to notice they produce a number of court-fee stamped sheets of values less than Rs. 50 to make up the deficiency. In this way much valuable paper is wasted and R. 7 at p. 45 of the Stamp Manual regarding the number and value of court-fee stamps to be used is systematically evaded. At present a person wishing to buy a court-fee stamp exceeding Rs. 50 in value has to make an application for the stamp at the Treasury, then he has to go to the Bank of Bengal which is 500 to 600 yards distant to pay the cost of the same, and then he has to go back to the Treasury to obtain the stamp. As court-fee stamps are not usually taken out of the strong room more than once a day and there is always delay both at the Treasury and at the Bank, the result is that the would be buyer of a stamp of high value cannot get his business put through in less than 4 or 5 hours. In February last I discovered that an arrangement had been made in another High Court by which court-fee stamps of high values might be purchased in the High Court within a few minutes and I suggested that a similar system should be introduced here. The authorities considered that it would not be convenient to introduce such a system here and suggested an alternative which I accepter). I hope that in the near future there will be an improvement in the arrangements for the sale of court-fee stamps.
5. But the fact that appellants are often put to inconvenience in the matter of purchasing court-fee stamps cannot justify this Court in accepting these appeals. It has not even been suggested that the failure of the appellants to pay the proper court-fee is due to difficulties of procuring the stamps.
6. If appellants are prevented from filing their appeals within time by difficulties encountered in procuring the necessary court-fee stamps, they may possibly rely upon those difficulties as constituting “sufficient cause” within the meaning of Section 5 of the Limitation Act, for not having filed the appeal within time. But it must be remembered that such difficulties are really due to the litigants' inveterate habit of putting off the purchase of the court-fee and the filing of the appeal to the very last day. I would direct that the memorandum of appeal be returned to the appellants in each of these cases.
7. Mullick, J.:— I agree.
V.S/R.K
8. Memoranda of Appeal returned.