http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: MOHAMMAD MAHIBULLA AND ANR.

       Vs.

RESPONDENT: SETH CHAMAN LAL (DEAD)  BY LRS. AND ORS.

DATE OF JUDGMENT18/09/1991

BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) AHMADI, A.M. (J) SAWANT, P.B.

CITATION:  1993 AIR 1241            1991 SCR  Supl. (1) 179  1991 SCC  (4) 529        JT 1991 (4)     1  1991 SCALE  (2)661

ACT:     Code  of  Civil Procedure, 1908--Sections  107  (2),149, Order  VII-Proper court-fees not paid on the  memorandum  of appeal-Duty of appellate Court indicated--Costs to  respond- ents for appellants negligence.

HEADNOTE:     The  plaintiff-Wakf Board’s suit for declaration of  the right  to  the passage and possession  thereof  having  been dismissed  by  the  Trial Court, a title  appeal  was  filed before the District Judge.     A  Court  -fee of Rs. 15 was paid on the plaint  by  the Wakf  Board by an exemption notification. On its  memorandum of  appeal, the plaintiff had paid the same amount of  court fee.     Respondents  asked  for dismissal of the  memorandum  of appeal as it had not been sufficiently stamped.     The  Additional District Judge dismissed the  memorandum of appeal.     The  High Court did not interfere, when  plaintiff  took the matter before it.     Hence  this  appeal by special leave  by  the  plaintiff contending  that the learned Additional District  Judge  in- stead of dismissing the memorandum of appeal, an opportunity should  have been given and the appellant should  have  been called upon to make good the deficiency. Allowing the appeal, this Court,     HELD:  1.  When the lower Appellate Court came  to  hold that  the  memorandum of appeal had  not  been  sufficiently stamped, an opportunity should have been given by the  Court to the appellant to make good the balance court-fee within a time to be indicated and if there was failure to comply with the direction of the Court, the memorandum of appeal could 180 have been dismissed. This opportunity having not been given, the dismissal of the appeal was not appropriate. [181F-G]     2.  This  is  a case of negligence on the  part  of  the appellants  and,therefore,  the respondents  who  have  been dragged  in these proceedings for about 10 years  should  be compensated, by way of costs of Rs. 1,000. [182 B]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.1290 of 1979.     From  the  Judgment  and Order dated  16.8.1977  of  the Punjab  and Haryana High Court in Regular Second Appeal  No. 1001 of 1966. Dhruv Mehta and S.K. Mehta (NP) for the Appellants. J.D. Jain for the Respondent. The following Order of the Court was delivered:      This  is an appeal by special leave by  the  plaintiff- Wakf  Board.  Its suit for declaration of the right  to  the passage and possession thereof having been dismissed by  the Trial  Court, a title appeal was filed before  the  District Judge of Karnal. By an exemption notification on the  plaint in a suit of this type filed by the Wakf Board, court-fee of Rs.  15 is payable. On its memorandum of appeal, the  plain- tiff  had paid the same amount of court-fee also.  Objection was raised to sufficiency of court-fee and respondents asked for dismissal of the memorandum of appeal as it had not been sufficiently stamped. As a fact, while court fee of Rs.  638 was payable, court fee of Rs. 15 had been paid. This  matter was  preliminarily considered by the appellate court and  by the  order  dated  5.5.1966 the  Additional  District  Judge sustained  the  objection  and directed  the  memorandum  of appeal  to  be dismissed. The High Court did  not  interfere when plaintiff took the matter before it. Ultimately special leave  had  been granted by this court and at  the  time  of grant of leave, the following order was made:               "As  the petitioner is willing to pay  deficit               court  fee  on the memo of appeal  before  the               District  Judge without prejudice,  we  direct               the  issue of show cause notice to  the  other               side?      It is unfortunate that even when that order was made on 27.11.1978  this matter is coming for final disposal  almost 13 years thereafter.      The  plea  raised by the appellant before  the  learned Additional District Judge that the appeal was a continuation of the suit and the same                181 Court  fee as was payable on the plaint was  appropriate  in appeal had been rightly negatived. At the trial stage, there was  an exemption and since it was specifically confined  to the trial stage there was no ground to claim the benefit  at the  appellate stage also. But when the  learned  Additional District  Judge came to hold that the memorandum  of  appeal had  not  been  sufficiently stamped,  instead  of  outright dismissing  the memorandum of appeal, an opportunity  should have  been given and the appellant should have  been  called upon  to make good the deficiency. Under the  provisions  of Order  VII of the Code of Civil Procedure which  applies  to suits,  when the plaint does not bear appropriate  court-fee this  is the requirement of the law. Section 107 (2) of  the Code of Civil Procedure provides:               "(2) Subject as aforesaid, the Appellate Court               shall  have the same powers and shall  perform               as  nearly  as may be the same duties  as  are               conferred  and imposed by this Code on  Courts               of  original jurisdiction in respect of  suits               instituted therein."               Section  149  of the Code of  Civil  Procedure               provides:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

             "Where  the whole or any part of any fee  pre-               scribed  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  discre-               tion, 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."     Reading these two provisions together and keeping  fair- ness of procedure in view, we are inclined to agree with the counsel  for  the appellant that when  the  lower  Appellate Court  came  to hold that the memorandum of appeal  had  not been  sufficiently stamped, an opportunity should have  been given by the Court to the appellant to make good the balance courtfee  within  a time to be indicated and  if  there  was failure to comply with the direction of the Court the  memo- randum of appeal could have been dismissed. This opportunity having not been given, we are of the view that the dismissal of the appeal was not appropriate.     Counsel  for  the appellant has undertaken  to  pay  the deficit court fee as was payable on the memorandum of appeal when  the appeal was filed within four weeks hence. In  case the amount of court-fee is so paid, the 182 rifle appeal shah be revived to be dealt with in  accordance with  law. If there be failure to do so, the order  of  dis- missal shah stand sustained.     We  are inclined to agree with counsel for the  respond- ents  that this is a case of negligence on the part  of  the appellants  and,  therefore, the respondents who  have  been dragged  in these proceedings for about 10 years  should  be compensated. We direct that the restoration of the appeal in the  appellate  court on payment  of  appropriate  court-fee shall be subject to the further condition of payment by  way of costs of Rs. 1,000. The appeal is disposed of accordingly. V.P.R.                                 Appeal allowed. 183