The Original Side Rules and practice allow for the subsequent payment of filing fees for exhibits, depositions, and minutes.

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 and 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 s

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