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High Court Of Delhi
UNION BANK OF INDIA - Appellant
Versus
JAGAN NATH RADHEY SHYAM AND COMPANY - Respondent
C.M. 38 of 1978
Decided On : 04/17/1978
CIVIL PROCEDURE CODE - ORDER 41 RULE 1 SUB-RULE (3) - DEPOSIT OF DECRETAL AMOUNT OR FURNISHING OF SECURITY - NOT A CONDITION PRECEDENT FOR VALID PRESENTATION OF APPEAL - RULE 9 OF CHAPTER 2-A VOL. V OF HIGH COURT RULES AND ORDERS - DEPOSIT OF PRINTING CHARGES - DIRECTORY AND NOT MANDATORY - DELAY IN SUPPLYING DEFICIENCY IN COURT-FEE - CONDONED.
Fact of the Case:
Appellant filed an appeal on the last date with insufficient court fees and a delay in supplying the deficiency. The court fee was paid on the 28th of December, 1977, and the application for condonation of delay was filed on the 6th of January, 1978. The respondent objected to the condonation of delay and the proper presentation of the appeal within time.
Finding of the Court:
The court held that the delay in supplying the deficiency in court-fee was neither contumacious nor mala fide and condoned the delay. The court also held that Rule 9 of Chapter 2-A Vol. V of High Court Rules and Orders, which requires the appellant to attach a receipt for a sum of Rs. 100.00 to cover the cost of printing the record, is directory and not mandatory. The court further held that sub-rule (3) of Rule 1 of Order 41 of the Code of Civil Procedure, which requires the appellant to deposit the amount disputed in the appeal or furnish security in respect thereof, is not a condition precedent for valid presentation of the appeal.
Issues: 1. Whether the delay in supplying the deficiency in court-fee should be condoned? 2. Whether Rule 9 of Chapter 2-A Vol. V of High Court Rules and Orders is mandatory or directory? 3. Whether sub-rule (3) of Rule 1 of Order 41 of the Code of Civil Procedure is a condition precedent for valid presentation of the appeal?
Ratio Decidendi: 1. The court held that the delay in supplying the deficiency in court-fee was neither contumacious nor mala fide and condoned the delay. 2. The court held that Rule 9 of Chapter 2-A Vol. V of High Court Rules and Orders, which requires the appellant to attach a receipt for a sum of Rs. 100.00 to cover the cost of printing the record, is directory and not mandatory. 3. The court held that sub-rule (3) of Rule 1 of Order 41 of the Code of Civil Procedure, which requires the appellant to deposit the amount disputed in the appeal or furnish security in respect thereof, is not a condition precedent for valid presentation of the appeal.
Final Decision: The court condoned the delay in supplying the deficiency in court-fee and held that the appeal was properly presented within time.
( 1 ) C. M. 38 of 1978 (filed in R. F. A. 13 of 1978) has been posted for disposal after notice. This is an application under Sections 148 and 149 of the Code of Civil Procedure for condonation of delay in supplying the deficiency in court-fees.
( 2 ) THIS application for condonation of delay arose in the following circumstances. The judgment and decree was passed by the trial Court on 17th August, 1977. The appellant applied for certified copy of the judgment and decree on 20th August, 1977 and the same was ready for delivery on 23rd September, 1977. The common case of the parties is that after taking into aount the time spent in obtaining certified copies of the judgment and the decree of the trial court, the appeal could be filed up-till 19th December, 1977. The appeal was filed on 19th December. 1977 on a court-fee of Rs. 5. 00 only. The court-fee payable was Rs. 2783-20. The appeal was scrutinised by the Registry and, apart from other defects, it was noticed that the appeal was insufficiently stamped and it was also noticed in objection No. 6:
"receipt of Rs. 100. 00 as advance charges should be deposited". It appears that on the same date, the appellant deposited Rs. 100. 00 in the Treasury of the High Court filed the receipt on record. It also appears on the same sheet where the Registry had raised objections that there is a note by the counsel:
"objections removed". The appeal again came before the Deputy Registrar who noted: "what about limitation"? This note is dated 9-1-1978.
( 3 ) IT again appears from the record that the appellant filed the aforesaid application under Sections 148 and 149 of the Code of Civil Procedure on 6-1-1978. In this application, it was stated that the appeal had been filed on 19th December, 1977 on the court- fee of Rs. 5. 00. The appeal required a court- fee of Rs. 2783-20 and the appellant "is now filing the requisite court-fee". It was claimed in the application that the court-fee of Rs. 2783-20 is only available in the Treasury which closes at 1. 30 p. m. and the instructions to file the appeal were received by the counsel only after the treasury had closed. The court-fee papers were not available elsewhere.
( 4 ) IT is also stated that since 19th December, 1977 was the last date for filing the appeal, the appeal was filed as above and it was prayed that the delay in filing the court- fee may be condoned.
( 5 ) WHEN this appeal was posted before me for admission I decided to first give notice only of the C. M. 38 of 1978 for 28-2-78 by my order dated 25-1-1978.
( 6 ) THE application has been opposed on behalf of respondent No. 1. In the reply, it was pointed out that even according to the appellant, limitation expired on 19th December, 1977. Nothing is disclosed in the application why stamp papers could not be purchased before the expiry of limitation. The further objection taken is that no sufficient cause is disclosed nor has any reason been given for not filing the appeal with the required court-fee stamps before 6-1-1978 although the stamps had been purchased on 28-12-1977.
( 7 ) ANOTHER objection taken is that in accordance with the High Court Rules and Orders, the records are required to be printed and the appellant in such a case was required to deposit the printing charges of Rs. 100. 00 and the receipt of the deposit of the printing charges was required to be attached with the memo of appeal and since the deposit of the printing charges was made only on 28th December, 1977, there was no proper presentation of the appeal within time.
( 8 ) I will first deal with the question as to the condonation of delay in making up the deficiency of court-fees.
( 9 ) THERE can be no doubt that the appellant has every right to file the appeal even on the last date and also purchase the court- fee stamps on the same date. It also transpires that the court hours for filing appeals etc. are not the same as the hours of the Treasury. The stamps of higher denomination as were required
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