An appeal is barred by limitation if the deficiency in court-fee stamps affixed on the certified copies of the judgments of the two Courts below is made good beyond limitation.

1. A preliminary objection has been raised by the learned Counsel for respondent Om Prakash, action-purchaser, that this execution second appeal should be dismissed on the ground that it had been filed beyond limitation. The submission was that the appeal had been filed on 12th of July, 1965, which was the last date of limitation, but on that date the certified copy of the appellate judgment given by the learned Senior Subordinate Judge, Karnal, had not been stamped with proper court-fee. It bore a Court-fee stamp of Rs. 1.25 Paise only, while in fact Court-fee Stamps of Rs. 2,65 P. should have been affixed thereon. Similarly, the certified copy of the judgment of the trial Court also had been insufficiently stamped. This deficiency, when pointed out by the office, was made good after limitation, on 28th July, 1965. It was conceded by the learned Counsel for the appellant that the facts stated in the preliminary objection were correct. He, however, contended that the appeal should not be dismissed on that ground.

2. The objection raised by the learned Counsel for the respondent finds support from a number of judicial decisions. The first one to which reference was made was Shahadat v. Hukam Singh, AIR 1924 Lah 401, where it was held by Scott-Smith, j.---

"Having regard to Sections 4 and 28 of the Court-fees Act there is no legal appeal filed if the order appealed against is not properly stamped. A counsel when filing an appeal ought to see that all the documents which require stamp are properly stamped. He cannot shelter himself, behind his clerk, and if his clerk has been guilty of any carelessness he is responsible for that."

This decision was followed by Din Muhammad, J., in Mohammad Fazal Elahi v. Ram Lal, AIR 1935 Lah 124 (2). Then Bhide, J., in Har Narain v. Jai Gopal 1937-39 Pun LR 502, placed reliance on it. A Division Bench of the Lahore High Court approved of it in Balwant Singh v. Jagjit Singh AIR 1947 Lah 210. Then again, D. K. Mahajan, J., in Custodian, Evacuee Property, Punjab, 298, placed reliance on it and on the subsequent decision in AIR 1935 Lah 124 (2). As against these rulings, learned Counsel for the appellant relied on the decision of I. D. Dua, C. J., in Custodian of Evacuee Property v. Rameshwar Dayal, 1968-70 Pun LR (Delhi Section) 7 = (AIR 1968 Delhi 183) where it was observed-

"When the deficient amount of Court-fee to be affixed on the copy of the decree or order appealed from was actually attached with the application under Section 149 of the Code of Civil Procedure, it would be a more appropriate and more satisfactory exercise of judicial discretion to allow the deficiency to be made good so that the controversy was heard on the merits, rather than to throw out the appeal on this ground. The question of Court-fee is by and large a matter between the State and the Court, though of course the incompetency of the appeal on the ground of absence of or inadequacy of Court-fee Stamp is always open to the litigant to urge."

In that case, it would be noticed, that an application under Section 149 of the Code of Civil Procedure had been made attaching the deficiency in the amount of Court-fee to be affixed on the copy of the order appealed from, and under those circumstances it was held by the learned Chief Justice that the Court below should have granted that application. No such application had been made in the instant case when making up the deficiency in the Court-fee. Besides, that authority was based on a Full Bench decision of the Lahore High Court in Jagat Ram v. Misar Kharaiti Ram, AIR 1938 Lah 361 (FB), where it was held-

"The discretion conferred on the Court by Section 149 is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act."

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