The provisions of Section 148 and 149 of the Code of Civil Procedure are intended to apply to cases of bona fide mistakes and not where a party consciously and intentionally avoided putting in deficit court fees in an attempt to avoid the law of limitation.

JUDGMENT

Soumen Sen, J. - The application for dismissal of the appeal for non-payment of deficit court fees along with the application for extension of time to put in deficit court fees are taken up together and disposed of by this common order.

2. The appeal is arising out of an order passed in connection with an application filed under Order VII Rule 11 of the Code of Civil Procedure for dismissal of the suit. The suit was for specific performance of an agreement dated December 15, 2006 as varied by an oral agreement dated November 21, 2007. The suit was dismissed by the learned Trial Court on 12th September, 2013 accepting the submission of the petitioner/applicant/respondent no.1 that the plaint does not disclose any cause of action.

3. The appeal was initially filed as FMAT treating it as an appeal from order and on such understanding the appellant put in Rs.100 towards court fee. The department accepted the said court fees and registered the appeal as FMAT 580 of 2013.

4. The appeal along with the stay petition being CAN 1 of 2013 (old CAN 4587 of 2013) were listed before a coordinate Bench on 10th December, 2014 for admission. Upon hearing the parties, the following order was passed:

'Since the appeal is directed against an order rejecting the plaint under Order 7 Rule 11 of the Code of Civil Procedure, the appeal is against a decree and therefore, the appeal has to be preferred against the decree.

Leave is granted to the appellant to make necessary corrections by giving appropriate court fees and then move the matter upon notice to the other side.

For the time being, let the matter go out of list.' (emphasis supplied)

5. It can be fairly discerned from the aforesaid order that the appeal was kept in abeyance for want of deficit court fees and other corrections namely change in the classifications of the case that is, from FMAT to FA. The appeal now is required to be classified as First Appeal (FA) instead of First Miscellaneous Appeal. The revised report of the Stamp Reporter dated December 18, 2014 would show that in terms of the aforesaid order the appeal was classified as FAT with number 597 of 2014 on 18th December, 2014. However, no step was taken by the appellant towards payment of deficit court fees until 25th April, 2022, after the appellant was served with an application by the respondents/applicants for dismissal of the appeal on the ground of deficit court fees.

6. The power to make up deficiency of court fees is stated in Section 149 of Code of Civil Procedure (in short CPC). The said section reads as follows:

'S.149. 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'.

7. The said provision empowers the court, in its discretion, at any stage to allow payment of court fees and it is only upon such payment being made the document would have the same force and effect as if such fee had been paid in the first instance meaning thereby that it shall relate back to the date of presentation of the document, which in the instant case, is the Memorandum of Appeal (MOA). Ordinarily when a MOA is presented the department would scrutinize it and flawless MOA is placed before the appropriate bench with the report of the stamp reporter. In the instant case the stamp reporter on misconception of law wrongly classified the appeal and accepted the MOA with court fees of Rs.100/- only. Thereafter such defects being noticed at the stage of admission of the appeal and hearing of the stay petition the Hon'ble Division Bench passed the aforesaid direction.

8. Admittedly for almost 8 years the appellant did not take any steps f