10 April 1970
Supreme Court


Case number: Appeal (civil) 544 of 1967






DATE OF JUDGMENT: 10/04/1970


CITATION:  1971 AIR 1374            1971 SCR  (1) 253  CITATOR INFO :  RF         1976 SC1503  (10)

ACT: The  U.P. High Court (Abolition of Letters  Patent  Appeals) Act, 1962 (U.P. Act 14 of 1962), s. 3-Special Appeal against judgment  of  Single  Judge of  High  Court  presented  with deficient court-fees before coming into force U.P. Act 14 of 1962-Deficiency  made up under order of Court  after  coming into force of Act-Appeal whether to be treated as pending on   day immediately  preceding  coming  into  force  of  Act  within meaning of s.  3(2)Court  Fees Act, S. 4 and Code  of  Civil Procedures s. 149 should he   read harmoniously.

HEADNOTE: The  U.P. High Court (Abolition of Letters  Patent  Appeals) Act came in-to force on November 13 1962.  Section 3(1)  of- the  Act  provided that no appeal arising from a suit  or  a proceeding   instituted  or  commenced  whether   prior   or subsequent  to the enforcement of the Act, shall lie to  the High  Court  from a judgment and order of one Judge  of  the High  Court, made in exercise of appellate  jurisdiction  in respect of a decree or order made by a court subject to the superintendence of the High Court, anything to the  contrary contained  in cl. 10 of the, Letters Patent of  Her  Majesty dated  17th  March 1866 read with cls, 17 of the  U.P.  High Court   Amalgamation  Order  of  1948,  or  in   ’any   law, notwithstanding.   In subs. (2) of the section an  exception was  made  in the case of appeals pending before  the,  High Court  on  the date immediately preceding the  date  of  en- forcement  of the Act.  The memorandum of appeal in  Special Appeal  No. 1880 of 1962 was presented in the High Court  of Allababad on November 9, 1962.  The High Court directed  the payment of additional court fees and on that being done that memorandum  was  ’accented and registered in  January  1963. Eventually, however the High Court held that the appeal  was not  saved by s. 3(2) of U.P. Act of 1962, since in view  of s.  4 of the Court Fees Act the memorandum of appeal had  no effect  before  the making good of the deficiency  in  court fees.  In appeal by certificate, to this Court, the question for decision was whether there was an appeal pending  before the  High  Court  on  November  12,  1962  i.e.  tile   date immediately preceding the date of the enforcement of Act  14



of 1962. HELD : In considering the question as to the maintainability of  an  appeal when the court fee paid was  insufficient  to start  with but the deficiency was made good later  on,  the provisions  of  the  Court Fees Act and the  Code  of  Civil Procedure  have  to be read together to  form  a  harmonious whole  and  no effort should be made to give  precedence  to provisions  in,  one  over those of  the  other  unless  the express  words  of a statute clearly override there  of  the other.   In the present context this could only-be  done  by readings s. 149 of the Code of Civil Procedure as. a proviso to s. 4 of the Court Fees Act by allowing the deficiency  to be made good within the period of time fixed by it. [261  F- H] Although there is no definition of the word "appeal" in  the Code  of Civil Procedure, it can be instituted by  filing  a memorandum of appeal as provided in O. 41, r. 1 of the Code. The  filing  of a memorandum of appeal  therefore  bring  an appeal  into  existence; if the memorandum is  deficient  in court-fee,  it may be rejected and if rejected,  the  appeal comes  to  an end.  But if it is not rejected  and  time  is given to the appellant 254 to make up the deficiency and this opportunity is availed of s.  149  of  the  Code which  expressly  provides  that  the document is to have validity with retrospective effect as if the  deficiency  had been made good in  the  first  instance comes  into play.  By reason of the deeming provision in  s. 149  the  memorandum of appeal is to have,  full  force  and effect and the appeal has to be treated as one pending  from the  date  when  it was before the Stamp  Reporter  and  the deficiency noted therein. [264 H; 265 D-H] Applying the above principle the bar of s. 3(1) of U.P.  Act 14  of 1962 would not operate in the instant case since  the appeal  in  question  must be held to  have  been  ’pending’ within the meaning of s. 3(2). [265 D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 544 of 1967. Appeal from the judgment and decree dated August 18, 1964 of the Allahabad High Court in-Special Appeal No. 880 of 1962. Gobind Das and G. S. Chatterjee  for the appellant. C.   B. Agarwala, Yogeshwar Prasad and S. K. Bagga, for res- pondent No. 1. The Judgment of the Court was delivered by-- Mitter,  J.  In this appeal by certificate  granted  by  the Allahabad  High Court the only question is, whether  Special Appeal No. 880 of 196 of that court was maintainable in view of  the  provisions of the U.P. Act XIV of  1962  abolishing such appeals. The  said Act styled the U.P. High Court (Abolition of  Let- ters  Patent Appeals) Act came into force on 13th  November, 1962.  Section 3 of the Act provided as follows :-               "(1)  No  appeal,  arising  from  a  suit   or               proceeding  instituted or  commenced,  whether               prior or subsequent to the enforcement of this               Act,  shall  lie  to the  High  Court  from  a               judgment  and  order of one Judge of  the  the               High  Court,  made in  exercise  of  appellate               jurisdiction, in respect of a decree or  order               made by a court subject to the superintendence               of  the High Court, anything to  the  contrary               contained in clause ten of the Letters  Patent



             of Her Majesty, dated the 17th March 1866 read               with Clause 17 of the U.P. High Courts’ (Amal-               gamation) Order, 1948, or in any law not  with               standing.               (2)   Notwithstanding  anything  contained  in               sub-section (1) all appeals pending before the               High  Court on the date immediately  preceding               the  date  of enforcement of  this  Act  shall               continue  to lie and be heard and disposed  of               as  heretobefore, as if this Act had not  been               brought into force." 255 The  memorandum of appeal in Special Appeal No. 880 of  1962 was  presented  in  the High Court on  9th  November,  1962. There  was  some doubt as to whether the court-fee  paid  in respect of the memorandum at the date of its presentment was sufficient.   Ultimately however a Bench of the  High  Court directed  the  payment of additional court-fee and  on  that being  done  the memorandum was accepted and  registered  in January 1963.  The question before us is, whether there  was an  appeal  pending before the High Court on  12th  November 1962  i.e.  the  date  immediately  preceding  the  date  of enforcement of the above U.P. Act. It will not be out of place to set forth a short history  of the  litigation  culminating  in  the  filing  of  the  said memorandum  of  appeal.  On 2nd-April 1872  a  property  was mortgaged   with  possession  to  one  Beni  Madho  by   two mortgagers, namely, Girdharilal and Smt.  Sunder Bibi for  a sum  of Rs. 3,684.  The first respondent herein claiming  to be the representative-in-interest of the mortgagors  claimed to have paid the amount of the mortgage money to respondents 2  to 7 herein on 10th September 1945.  She filed a suit  on September 26, 1946 ’being Suit No. 117 of 1946 praying inter alia for )ejectment from the suit property of the appellant (impleaded  as  defendant  No. 1 in the  suit)  and  another person impleaded as defendant No. 8, a sub-tenant.  For pur- poses of jurisdiction and court-fee she valued the  property in  suit i.e. a grove with houses, at Rs. 5,200 besides  Rs. 420 by way of mesne profits.  Alternatively, she prayed  for a decree for Rs. 3,684 in case possession and occupation was not  decreed  to her.  On 2nd November 1951  the  Additional Civil  Judge of Mirzapur dismissed the suit as, against  the appellant  and defendants 3 and 4. The plaintiff, the  first respondent herein, filed First Appeal No. 309 of 1952 is the High Court at Allahabad oil 26th February, 1952.  She valued the appeal at Rs. 4,816 and paid court-fee amounting to  Rs. 493-12-0.   During  the pendency of the appeal to  the  High Court,   the   original  plaintiff  died   and   her   legal representatives  were brought on record.  A  learned  single Judge  or  the High Court allowed the appeal by  a  judgment rendered  on 10th September 1962 He held that the  plaintiff was entitled to a decree for possession against  respondents 1  and  8  and also passed a decree  for Rs.  420  against respondent  No.  1 alone.  According to  the  learned  Judge defendants 2 to 7 being the representatives of the mortgagee were  proforma  defendants  and  were  not  liable  for  the Dlaintiffs  costs.   On  8th November,  1962  the  appellant (defendant  No. 1 in the suit) filed a memorandum of  appeal which was ultimately registered as Special Appeal No. 880 of 1962  paying court-fee amounting to Rs. 425 on the basis  of the  valuation  of  the property at Rs.  4,816.   The  Stamp Reporter  of  the Court reported that the  court-fee  stamps affixed to the 256 memorandum  were  insufficient by Rs. 425 according  to  the



valuation  of the property which was Rs. 8,920 on the  basis of  the relief claimed.  Counsel for the appellant  made  an endorsement   at  the  foot  of  the  said  report   raising objections thereto.  The Joint Registrar made a note on  9th November 1962 reading:               "Without going through the papers the question               of  court-fees  cannot be  decided  forthwith.               Let it be taken as presented to-day."               The order sheet shows that               In compliance with the Registrar’s order dated               11th  December  1962  an  objection  filed  by               counsel  for, the appellant was put  up  with               the Stain Reporter’s Report." On  20th December 1962 the Taxing Officer made a  note  that the deficiency, of Rs. 425/- had been made good on that date by the appellant      and that counsel expressed his  desire not to press the objection    raised  earlier.  The  Taxing’ Officer directed that the matter be       placed before  the Court for orders as to the acceptance of stamps to make good the  deficiency  and for amendment of the valuation  of  the Special  Appeal.   The  matter appeared on the  board  of  a Division Bench of the High Court on 31st December, 1962 when it  was  adjourned  till  3rd January  1963.   On  the  last mentioned  date  the  Bench allowed  the  amendment  of  the valuation  of the appeal and directed the admission  of  the appeal and issue of notices.  On the matter appearing before another Division Bench on 4th January, 1963 and  explanatory order  was  made  recording,  that  the  court-fee  on   the memorandum  of the Special Appeal was  originally  deficient because  the  First  Appeal had  been  wrongly  under-valued inasmuch   as  the  valuation  of  the  property  had   been determined  by  the tral court at the figure of  Rs.  8,920. After  that determination, the trial court had  called  upon the  plaintiff to make up the deficiency in respect  of  the court-fee for the relief of possession and the plaintiff had complied  with  that order.  Consequently the order  of  the trial court determining the court-fee payable as well as the valuation  had  become  final.  The  plaintiff  should  have valued  the  First Appeal at Rs. 8,920 and his  counsel  was prepared to make up the deficiency in court-fee. The  point  to  note is that the appellant  in  the  Special Appeal  was probably not very much to blame inasmuch  as  he had  valued the same according to the valuation put  on  the First  Appeal by the plaintiff herself to start  with.   The question  however  remains as to whether on  the  deficiency being  made good the appeal could be treated as one  pending on 12th November, 1962. 257 Appeals  being creatures of statutes or statutory rules,  we must  turn to the Code of Civil Procedure first to find  out how  they  are to be instituted.  Order 41 rule 1  (1)  lays down that :               "Every  appeal shall be preferred in the  form               of a memorandum signed by the appellant or his               pleader and presented to the Court or to  such               officer  as it appoints in this  behalf.   The               memorandum  shall be accompanied by a copy  of               the  decree  appealed  from  and  (unless  the               Appellate  Court dispenses therewith)  of  the               judgment on which it is founded." Sub-r.(2) of the rule provides that the memorandum shall set forth  concisely  and under distinct heads, the  grounds  of objection  to the decree appealed from without any  argument or   narrative;   and  such  grounds   shall   be   numbered consecutively.  Under rule 9(1) of the Order:



             "Whether  a memorandum of appeal is  admitted,               the  Appellate Court of the proper officer  of               that  Court shall endorse thereon the date  of               presentation, and shall register the appeal in               a book to be kept for the purpose." Under sub-r.(2) such book is called the Register of Appeals. Rule  22 of Order 41 gives the respondent, although  he  may not  have appealed from any part of the decree the right  to support the decree on any of the grounds decided against him and further to take any cross-objection to the decree  which he could have taken by way of appeal provided he files  such objection  in the appellate court in- the manner laid  down. Under sub-r.(2) such cross-objection has to be put up in the form of a memorandum. It is necessary to note the relevant provisions of the Rules of  the High Court Allahabad High Court made in exercise  of the powers conferred by Art.225 of the Constitution of India and all other powers enabling the court in that behalf  with regard  to  the institution of appeals  generally  and  also Special  Appeals.  In Chapter 1 rule 3 a Special  Appeal  is defined  as  an  appeal  from the  judgment  of  one  Judge. Omitting the words which are not relevant, rule 5 of Chapter VIII. provides               An  appeal  shall lie to the  Court  from  the               judgment.....   of  one  Judge  made  in   the               exercise of appellate jurisdiction in  respect               of  a decree or order made in the exercise  of               appellate  jurisdiction by a court subject  to               the  superintendency of the Court,  where  the               Judge  who passed the judgment  declares  that               the case is a fit one for- appeal." Chapter XI deals in general with the presentation of appeals and  applications.   Under  rule 1  of  this  Chapter  every memorandum of 258 appeal  or  objections must be presented  for  admission  in court.( This rule however does not apply to appeals and  ap- plications  that may under the rules of the court  be  filed before  the  Registrar  or other officers.  Under  r.  3  of Chapter Xi no memorandum of appeal shall be presented unless it  bears an office report specifying the matters  mentioned in  clauses  (a)  to (f) thereof. Cl.  (a)  relates  to  the question whether the memorandum of appeal is within time  or if  beyond  time,  the period by Which it  is  beyond  time. Under cl. (d) a statement has to be made whether any  court- fee is payable or not.  The matters mentioned in cl. (e) are :               "Where  court-fee  is  payable,  whether   the               court"fee paid is sufficient and in case it is               deficient, the extent fo such deficiency." The  rule also lays down that where a report under  cl.  (e) cannot  be  made without an examination of the  record,  the office  shall state that a further report would be  made  on receipt  of  the  record.   Under r. 4 it  is  open  to  the appellant  or his advocate if he contests the office  report as  to  court-fee to take the memorandum of  appeal  to  the Taxing  Officer for the determination of his  objection  and the Taxing Officer must determine it forthwith.  Further, if the  Taxing Officer decides that there is deficiency in  the amount  of  the  court-fee  paid,  the appellant  or   the applicant as the case may be shall make good such deficiency before  presenting  the  memorandum or  application  to  the court;  provided that if limitation is about to  expire  and the  time is too Short to enable the appellant to make  good such deficiency, he can present the memorandum of appeal  in



court and make good such deficiency within such time as  may be allowed by the court.  Under r. 10(2) of Chapter IX               "In a Special Appeal from the judgment of  one               Judge  passed  in the  exercise  of  appellate               jurisdiction,  the memorandum of appeal,  duly               stamped, shall be presented within sixty  days               from the date of judgment.  The memorandum  of               appeal  need not be accompanied by a  copy  of               the  judgment appealed from or a copy of  the               decree  or formal order and the time taken  in               obtaining such copies shall not be excluded in               computing the said period of sixty days." Under  sub-r.  (1) of r. 21 of Chapter IX no  memorandum  of appeal shall be received if it is not in the proper form  or it  is  not accompanied by the necessary  documents.   Under sub-r. (2) :               "If the required documents are not supplied or               the  defects are not removed within  the  time               allowed by the Judge or the Registrar, as  the               case may be, the appli-               259               cation  or  memorandum  of  appeal  shall  be-               listed for rejection before the Court." Rule 1 of Chapter XXXVII lays down that a separate  register of  institutions in the prescribed form has to be  kept  for each  of the classes of cases mentioned therein.   The  14th item  in  the list is "Special Appeals".   Under  this  rule cases must be, entered in the register according to the date of  admission  and  no  defective  case  should  be  entered therein.   Under  r.  3 of this Chapter a  register  in  the prescribed form has to be maintained of all defective  cases under several classes mentioned in rule 1 including  Special Appeals.   Such  cases have to be entered  in  the  register according  to the date of presentation and a record kept  of the steps taken from time to time to remove the defect.   As soon  as the defect has been removed and the case  admitted, it  has  to  be  entered  in  the  appropriate  register  of institutions. The recital of facts given above show that the rules of  the High  Court were folowed in this case and  the  requirements thereof were duly complied with. The Court Fees Act, VII of 1870, provides for the payment of various  fees  payable  in respect  of  different  kinds  of documents  to be filed in court.  Omitting the  words  which are not relevant, s. 4   lays down that :               "No document of any of the kinds specified  in               the  First  or  Second Schedule  to  this  Act               annexed,  as  chargeable with fees,  shall  be               exhibited or recorded in, or shall be received               or  furnished by, any of the said High  Courts               in  any case coming before such Court  in  the               exercise   of  its  jurisdiction  as   regards               appeals  from  the judgments of  one  or  more               Judges  of  the said Court, or of  a  Division               Court     unless in respect of  such  document               there be paid a fee of an amount not less than               that indicated by either of the said Schedules               as the proper fee for such document." Among   the  documents  specified  in  the  First   Schedule chargeable  with fees which are ad valorem are memoranda  of appeal  presented to any court.  Section 28 of the Act  lays down that no document which ought to bear a stamp under this Act shall be of any validity unless and until it is properly stamped.  This is however subject to the qualification  that if  any  such document is through  mistake  or  inadvertance



received, filed or used in any court without being  properly stamped,  the presiding Judge or the head of the  office  as the case may be or in the case of a High Court, any Judge of such  court may, if he thinks fit, order that such  document be stamped as he may direct; and on such document being 260 stamped accordingly, the same and every proceeding  relative thereto shall be as valid as if it had been properly stamped in the first instance. As  an appeal under the Code of Civil Procedure can only  be preferred in the form of a memorandum laid down in Order  41 rule  1 of the Code and further as the memorandum of  appeal has  to be stamped in accordance with the Court Fees Act  it would  appear that unless there were some saving  provisions such  a  memorandum  if not properly stamped  could  not  be recei ved  at all by the High Court when a litigant  desires to  file  an appeal or a Special Appeal.  The rules  of  the Allahabad   High   Court  specified  above  are   aimed   at adjudication  of  any dispute or objection as  to  court-fee payable  on a memorandum of appeal.  When it is  found  that the  court-fee  paid is deficient, the court  has  power  to allow  time for the purpose of making the  deficiency  good. Even where limitation is about to expire and the time is too short  to enable the appellant to make good  the  deficiency the court may allow the litigant time for the purpose.  This shows  that the court can keep on its file a  memorandum  of appeal  although insufficiently stamped and the  court  will ordinarily  allow  an opportunity to the appellant  to  make good the deficiency and will not throw it out of hand.   The Court  Fees  Act however lays an embargo on the  court  from receiving  any document including a memorandum of appeal  if it  is  not  properly stamped. this  provision  of  law  was strictly  construed  in the case of Balkaran Rai  v.  Gobind Nath Tiwari(1) where the Allahabad High Court took the  view that where a memorandum of appeal was insufficiently  stamps when  tendered  was subsequently stamped  sufficiently,  the affixing %of the full stamps would not have a  retrospective effect so as to validate the original presentation unless it has been done by order made under the second paragraph of s. 28  of the Court Fees Act.  In that case the  court  allowed the  Preliminary  objection that as the making good  of  the deficiency  had taken peace after the period  of  limitation there was before the court no valid appeal in regard whereof a decision could be given on merits. The  rigour of the law as interpreted in this  decision  was mitigated by the amendment of the Code of Civil Procedure of 1882  by  the insertion of section 582-A by Act VI  of  1892 reading               "If a memorandum of appeal or application  for               a review of judgment has been presented within               the  proper  period  of  limitation,  but   is               written upon paper insufficiently stamped, and               the insufficiency of the stamp was caused by a               mistake  on  the  part  of  the  appellant  or               applicant  as to the amount of  the  requisite               stamp, the               (1)   I.L.R. 12 Allahabad 129 F.B.               261               memorandum of appeal or application shall have               the same effect, and be, as valid as if it had               been properly stamped :               Provided that such appeal or application shall               be rejected unless the appellant or  applicant               supplies   the   requisite  stamp   within   a               reasonable  time after the discovery  of  the



             mistake to be fixed by the court." The above provision was enacted in a slightly different form in the Code of 1908.  S. 149 of the new Code reads:               "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." The above section therefore mitigates ’the rigour of s. 4 of the Court Fees Act and it is for the court in its discretion to allow a person who has filed a memorandum of appeal  with deficient  court-fee  to make good the  deficiency  and  the making,  good  of such deficiency cures the  defect  in  the memorandum  not from the time when it is made but  from  the time when it was first presented in court. In our view in considering the question as to the  maintain- ability   of   an  appeal  when  the  court-fee   paid   was insufficient  to start with but the deficiency is made  good later on, the provisions of the Court Fees Act and the  Code of  Civil  Procedure  have to be read  together  to  form  a harmonious  whole  and  no effort should  be  made  to  give precedence  to  provisions in one over those  of  the  other unless the express words of a statute clearly override those of the other. Apart from the decisions bearing on the point, there can  in our  opinion, be no doubt that s.4 of the Court Fees Act  is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonise the sets of provisions which can only be done by reading s.  149 as  a proviso to s. 4 of the Court Fees Act by allowing  the deficiency to be made good within a period of time fixed  by it.   If the deficiency is made good no  possible  objection can  be raised on the ground of the bar of limitation :  the memorandum of appeal must be treated as one filed within the period fixed by the Limitation Act subject to any 12sup(Cl)/70-3 262 express provision to the contrary in that Act and the appeal must be treated as pending from the date when the memorandum of  appeal was presented in court.  In our view it  must  be treated  as pending from the date of presentation  not  only for  the purpose of limitation but also for, the purpose  of sufficiency  as to court-fee under s. 149 of the  Code.   If such  a  construction be accepted, the bar of s.  3  of  the Abolition  of Letters Patent Appeals Act of 1962  would  not operate in the instant case. In the case of Gavarnga Sahu v. Botokrishna Patro(1) a  Full Bench of the Madras High Court was called upon to adjudicate on  the question of the validity of a plaint presented on  a paper  insufficiently  stamped to start with but  where  the deficiency was made good within the time given by the  court under s.54(b) of the Code of Civil Procedure, 1882.  Section 54(b) of the Code of 1882 is reproduced in Order 7, rule  11 of the Code of 1908.  Under the said provisions a plaint has to  be rejected if the relief sought is properly valued  but the  plant is ’Written upon a paper  insufficiently  stamped and  the plaintiff on being required by the court to  supply the requisite stamp within a time to be fixed by it fails to do so.  The argument advanced in that case before the  court



appears  to have been to the effect that a plaint which  was not sufficiently stamped within the period of limitation was not  a valid plaint at all.  In the order of  reference  the law  on  the subject was set forth in some  detail  and  the learned  referring  judge  opined  that  an   insufficiently stamped  plaint  did  not  become  a  new  plaint  when  the deficiency  was  supplied.  The learned Judges of  the  Full Bench  fully  agreed  with the view taken in  the  order  of reference  and with the reasons upon which it was based  and merely added that s.149 of the Civil Procedure Code of  1908 was in accordance, with the view. The Judicial Committee of the Party Council gave a  decision much  to  the same effect in Faizullah v.  Mauladad(2).   In this case the suit was filed for accounts and the settlement of  the  sums  due  in connection  with  the  affairs  of  a partnership  firm,  the plaintiffs valuing the suit  at  Rs. 3,000  for  the  purpose  of  court  fees  ’and  asking  for rendition  of accounts and a decree for Rs. 3,000  with  the statement  that if more than that amount was found  due  the plaintiffs would pay an additional court-fee.  The defendant asked  for a decree in his own favour for Rs. 29,000/.   The trial Judge passed a final decree in favour of the defendant for  Rs.  19,991  and no sum was found due  by  him  to  the plaintiffs  under their claim for Rs. 3,000.   The  judgment was   appealed  from  by  both  parties.   The   plaintiffs- ,appellants   challenged   the  decree  against   them   and maintained that not only that decree be set aside but one in their  favour  for  Rs. 3,000/_ or less or  more  should  be granted.  They (1) I.L.R. 32 Madras 305 F.B. (2) A.I.R. 1929 P.C. 147. 263 valued  the appeal for purposes of court-fee at  Rs.  19,991 and paid fees thereon amounting to Rs. 975.  The question as to   the  invalidity  of  the  appeal  on  the   ground   of insufficiency  of  court-fee was answered  by  the  Judicial Committee by holding that the memorandum of appeal did state in terms of the Act (i.e. the Court Fees Act) the amount  at which the relief was sought and that determined the  appeal. According to the Judicial Committee even if it was held that the  fee  payable was insufficient it was the  duty  of  the court  in exercise of its discretion to give an  opportunity to  add to the amount lodged the extra sum of Rs. 70  or  80 required  for  deferring the question of the amount  of  fee under the Court Fees Act until final value was  ascertained. Referring to the provisions of s. 149 of the Code the  Board observed that the discretion under that section "extended to the  whole  or any part of any fee prescribed and  could  be exercised at any stage in the case, while finally, upon  the extra  payment being made, the document is to have the  same effect  as if it had been paid in the first instance".   The Board  further  held that as the decree of  the  Subordinate Judge  was dated 24th March, 1924, the first appeal  was  on 27th  May  and the Second Appeal on 2nd June  the  time  for limitation  of  the appeal being 90 days both  appeals  were within time.  It was further held that the appeals were  not a  nullity  and  on the contrary they  were  documents  duly presented to and accepted by the court, and as to the  court fee  thereon, should the valuation be unsatisfactory  or  in the  end insufficient, that is validated by  the  additional payment,  the result of which payment is that the  document, namely, the memorandum of appeal, stands good from its  date and the appeals are accordingly not time-barred On  a  parity of reasoning it is difficult to see why  if  a memorandum  of  appeal insufficiently stamped is not  to  be



rejected as barred under the Limitation Act, why a different conclusion should flow as regards compliance with the  Court Fees Act in view of the express provisions of s. 1 49 of the Code.  In our opinion s. 1. 49 will cure the defect as  from the  date when the memorandum of appeal was filed alike  for the purpose of Limitation Act and the Court Fees Act and the appeal  must be treated as one pending on the  9th  November 1962 and as such unaffected by s.3 of the U.P. Act of 1962. In  Wajid  Ali v. Isar Bano(1) s. 149 was interpreted  as  a proviso  to  s. 4 of the Court Fees Act in  order  to  avoid contradiction  between  the  two sections.   The  court  was however  careful  to  lay down that  discretion  had  to  be exercised  in allowing deficiency of court fees to  be  made good  but  once it was done a document was to be  deemed  to have been presented and received on the date on which it was originally filed.  This was a case of plaint. (1)  A.I.R. 1951 Allahabad 4 F. B. 264 In  another  Full  Bench,  Hari Har  Prasad  Singh  v.  Beni Chand(1)  of  the  same,  year dealing  with  a  case  of  a memorandum  of appeal which was found defective for want  of proper  court-fee  and not admitted in view of s. 4  of  the Court  Fees Act but returned or rejected on that  ground  it was  held  that the memorandum could not be  treated  as  an appeal.  It was there observed               "If s. 4 of the Act (i.e. Court Fees, Act) had               stood    by    itself,   an    unstamped    or               insufficiently  stamped memorandum of  appeal,               chargeable  with  fees, could  not  have  been               received   by   the   High   Court   for   any               purpose.......  There is nothing in s. 149  of               the Code which overrides the provisions of  s.               4,  Court-fees Act,, it merely  postpones  the               operation of that section for the time  being.               If  the whole or part of the requisite  court-               fee is not paid within the time allowed by the               Court,  s.  149  of the Code  ceases  to  have               effect, and the Court is precluded from filing               or  recording an unstamped  or  insufficiently               stamped memorandum of appeal in court." According to Stroud, a legal proceeding is "pending" as soon as commenced, and until it is concluded i.e. so long as  the court having original cognizance of it can make an order  on the matters in issue, or to be dealt with, therein. When  the  deficiency in the payment of court-fees  is  made good and the document or memorandum of appeal is to be given the  force and effect which it would have had if  there  had been no deficiency, the appeal must be treated as pending on 12th November, 1962.  In Nagendra Nath v. Suresh (2 )  which turned   on  the  interpretation  of  Art.  182(2)  of   the Limitation Act of 1908 as regards the validity of an  appeal presented  in  an  irregular form the  Board  observed  that although  there was no definition of ’appeal’ in  the  Civil Procedure  Code any application by a party to  an  appellate court  asking  it  to set aside or revise a  decision  of  a Subordinate   Judge,  is  an  appeal  within  the   ordinary acceptation  of the term, and that it was no less an  appeal because it was irregular and incompetent. The words used in that judgment are no doubt of wide import. But  however that may be in the case before us there can  be no  difficulty  in holding that an appeal was  presented  in terms  of  Order 41, r. 1 of the Code inasmuch as  all  that this provision of law requires for an appeal to be preferred is  the presentation in the form of a memorandum as  therein prescribed.  If the court fees paid thereon be  insufficient



it does not cease to be a memorandum of appeal although  the court may reject . If the deficiency in (1) A.I.R. 1951 Allahabad 79. (2) A.I.R. 1932 P.C. 165. 265 the fees is made good in terms of an order of the court,  it must  be  held that though the curing of  the  defect  takes place on the date of the making good of the deficiency,  the defect  must  be treated as remedied from the  date  of  its original institution. In  view of the above reasons, we find ourselves  unable  to concur  in  the  judgment of the High Court.   In  the  main judgment under appeal, the reasoning appears to be that  the memorandum of appeal had no effect before the making good of the  deficiency  and  as  the same  took  place  after  12th November  1962 the appeal was not saved by s. 3 (2)  of  the U.P.  Act.  The learned Chief Justice of the Allahabad  High Court  expressed  the opinion that a  memorandum  of  appeal barred by time stood on a footing different from the one  in which   there  was  deficiency  in  the  court  free   paid. According  to him under s. 3 of the Limitation Act it is  an appeal  that  is dismissed and not a memorandum  of  appeal. When  therefore  s.4  of the Court Fees  Act  deals  with  a memorandum  of  appeal  the consideration  of  the  laws  of limitation  bears no analogy to a deficiency in  court-fees. With  due  respect  we  are  not  impressed  by  the   above reasoning.    As  already  noted,  although  there   is   no definition  of  the  word  "appeal" in  the  Code  of  Civil Procedure, it can only be instituted by filing a  memorandum of  appeal.   The filing of memorandum of  appeal  therefore brings  an  appeal  into existence;  if  the  memorandum  is deficient in court-fees, it may be rejected and if rejected, the  appeal comes to an end.  But if it is not rejected  and time is given to the appellant to make up the deficiency and this opportunity is availed of, s. 149 of the Code expressly provides  that  the  document  is  to  have  validity   with retrospective effect as if the deficiency had been made good in  the first instance.  By reason of the deeming  provision in s. 149 the memorandum of appeal is to have full force and effect and the appeal has to be treated as one pending  from the  date  when  it was before the Stamp  Reporter  and  the deficiency noted therein. In  the result, the appeal must be allowed with a  direction that   the  High  Court  should  hear  the  Special   Appeal instituted  on  the 9th November, 1962.  The costs  of  this appeal will abide by the decision of the Special Appeal. G.C.                           Appeal allowed. 266