Mannan Lal vs Chhotaka Bibi, B. Sharda Shankar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1970 Supreme(SC) 200

SUPREME COURT OF INDIA
J.M. SHELAT AND G.K. MITTER, JJ,
Mannan Lal,. Appellant
Versus
Mst. Chhotka Bibi (dead) by her legal representative and others. Respondents.
Civil Appeal No. 544 of 1967, D/10-4-1970.
Advocates appeared
Mr. Gobind Das Advocate, and Mr. G. S. Chatterjee, of M/s Kshatriya, and Chatterjee, for Appellant: Mr. C B. Agarwala. Sr. Advocate. (M/s. Yogeshwar Prasad and S. K Bagga. Advocates, with him), for Respondent No. 1.

Advocates:
C.B.AGARWAL, CHATTERJEE, G.S.CHATTERJI, GOBIND DAS, RAGESHVAR PRASAD, S.K.Bagga

Headnote:DISCRETION OF COURT—THIS SECTION MITIGATES RIGOUR OF COURT FEES ACT - FILING OF APPEAL - APPEAL FILED WITH DEFICIENT COURT FEE - MEMORANDUM OF APPEAL INSUFFICIENTLY STAMPED
       -This Section mitigates the rigour of Section 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 was first presented in Court. Section 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 two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Court Fee 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 bar of limitation the memorandum of appeal must be treated as one filed within the period of the limitation Act subject to any express provision to the contrary in that Act and the appeal must be treated as pending from the date when memorandum of appeal was presented in the Court. It must be treated as pending from the dale of presentation not only for the purpose of limitation but also for the purpose of sufficiency as to court-fees under Section 149 of the Act.
       -there is no definition of the word “appeal” in the Code, it can only be instituted by filing a memorandum of appeal that brings 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 to make up the deficiency and this opportunity is availed of. Section 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 deeming provision in Section 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 - Mannon Lal v. Chhotka Bibi, AIR 1971 SC 1374; see also decision in Jugal Kishore v. Dhanna, AIR 1973 SC 2508; Ganesh Prasad v. Mahendra Nath, AIR 1953 SC 431.
       -where the memorandum of appeal filed is insufficiently stamped, the Court may grant time for payment of deficient Court fee under Section 149 of the Code and on payment of deficient Court fee the appeal shall be deemed to have been filed when the memorandum of appeal was filed

Judgment

MITTER, J.: - In this appeal by certificate granted by the Allahabad High Court the only question is, whether Special Appeal No. 880 of 1962 of that Court was maintainable in view of the provisions of the U. P. Act XIV of 1962 abolishing such appeals.

2. The said Act styled the U. P. High Court (Abolition of Letters 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 High Court, made in exercise of appellate jurisdiction in respect of a decree of order made by a Court subject to the superintendence of the High Court, anything to the contrary contained in clause 10 of the Letters Patent of Her Majesty, dated the 17th March, 1866 read with Cl. 17 of the U. P. High Court s (Amalgamation) Ordr, 1948, or in any law notwithstanding.

(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".

3. 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.

4. 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 mortgagors, namely, Girdharilal and Smt. Sunder Bibi for a sum of Rs. 3684/-. 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 subtenant. For purposes 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 in the High Court at Allahabad on 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 of 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 pro forma defendants and were not liable for the plaintiffs 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 amo

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