The Court's discretion under Section 149 of the Civil Procedure Code allows for the rejection of an insufficiently stamped memorandum of appeal without extending the time for payment of the additional court fee.

Macnair, A J C—The appellant filed; a memorandum of appeal a day or two before the expiry of the period of limitation. The memorandum was signed by his pleader and contained the following note: The memo of appeal should have been written on court-fee of Rs. 90 but as the client has not come and has not been able to arrange for court-fees the memo of appeal is filed on a Court-fee of annas eight only. The deficiency will be paid on or before the date of arguments.

2. It appears then that the appellant had failed to provide his pleader with funds or even to give him definite instructions. The appeal was filed on a stamp of a trivial value with the object of leaving it open to the appellant after the period of limitation had expired to pay the court-fee or to decide to take no further steps, the pleader expended eight annas. The learned District Judge rejected the memo of appeal because it was insufficiently stamped and no sufficient ground was shown for extending the time for supplying the proper court-fee. He remarked that the filing of the appeal on an eight-anna stamp was a mere evasion.

3. In second appeal it is urged that the lower appellate Court was bound to give time for payment of the additional court-fee. Under Order 7, Rule 11, Schedule 1, Civil P.C., when a plaint is written upon a paper insufficiently stamped, it must be rejected only after the plaintiff has been given time to supply the requisite stamp paper and has failed to do so; but in the present case it is an appeal and not a suit that was filed. In Achut Ram Chandra v. Nagappa Bab Balgya, 1914 38 ILR(Bom) 41 it was held that a memorandum of appeal should be treated in the manner laid down for a plaint by Order 7, Rule 11. The learned Judges, at p. 44, remarked: Section 107, Sub-section 2 of the Code, which reproduces Section 582 of the old Code, provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.

4. But they have stated (at p. 45) that Section 149, Civil P.C., was substituted for Section 582-A of the old Code. Clause 7, Rule 11 and Section 107, Sub-section 2, of the new Code, reproduce sections of the old Code. These sections in the old Code did not govern the procedure with regard to insufficiently stamped memoranda of appeal; for Section 582-A laid down a different procedure. In my opinion, then these sections, reproduced in the new Code, do not govern the procedure, since Section 582-A is not omitted but is replaced by a section which gives somewhat different instructions regarding the treatment of documents such as memoranda of appeal. The learned Judges of the Bombay High Court next remark that, unless the authority to reject such a memorandum of appeal as this is referred to Clause 7, Rule 11(c), there is not, so far as they were aware, any authority to which such action of the Court could be referred. With due respect I express ray opinion that Sections 1, 4 and 6, Court-fees Act, authorize the action; the Courts cannot receive a memorandum unless proper fee has been paid; they must, then, reject it unless some special provision in the Code directs that time should be given. I add that Clause 7, Rule 11, does not refer to a plaint which bears no stamp; surely such a plaint must be rejected in accordance with Sections 4 and 6, Court-fees Act, and these sections do not distinguish between a document in respect of which no fee has been paid and a document in respect of which the fee paid is insufficient.

5. A view opposed to the view taken in Aahut Ramchandra v. Nagappa Bab Balgya, 1914 38 ILR(Bom) 41 has been taken in a number of cases. I mention Lekh Ram v. Ramji Das,1920 1 ILR(Lah) 234 and Narayan Rao v. A. Seshamm,1915 AIR(Mad) 426 . I respectfully disagree with the reasoning on which the Bombay decision is based. The time given to an unsuccessful litigant for the filing