Holding

An appellate court must first grant the appellant an opportunity to pay any deficient court fee within a time specified by the court; dismissal without such an opportunity is improper.

Summary

The Wakf Board filed a suit for declaration of a right of passage, which was dismissed by the trial court, leading it to file a title appeal before the District Judge. Although an exemption allowed a nominal court fee of Rs.15 on the plaint, the memorandum of appeal required a fee of Rs.638, of which only Rs.15 was paid. The respondents objected that the appeal was insufficiently stamped, and the Additional District Judge dismissed the appeal without giving the appellant a chance to pay the deficiency. The High Court did not interfere, and the Supreme Court, on special leave, held that under CPC Sections 107(2) and 149, the appellate court must first allow the appellant to pay the shortfall within a specified time before dismissing the memorandum. Consequently, the dismissal was deemed improper, the appeal was restored, and the respondents were awarded costs of Rs.1,000 for the appellants' negligence.

Issues considered

When does an appellate court have to give an opportunity to pay a deficient court fee before dismissing a memorandum of appeal under the Code of Civil Procedure?
Is dismissal of a memorandum of appeal without such an opportunity permissible?
Are the respondents entitled to costs due to the appellants' negligence in the fee payment process?

Legislation cited

Code of Civil Procedure, 1908s. 107(2), s. 149

Subjects

court feememorandum of appealdismissalopportunity to payCPCnegligencecostsspecial leaveWakf Boardappellate jurisdiction

Judgment

MOHAMMAD MAHIBULLA AND ANR. A
v.
SETH CHAMAN LAL (DEAD) BY LRS. AND ORS.

SEPTEMBER 18,1991
(RANGANATH MISRA, CJ., A.M. AHMADI AND P.B.
B
SAWANT, JJ.)

Code of Civil Procedure,1908-Sectio_ns 107 (2),149, OrderVII-
Proper court-fees not paid on the memorandum of appeal-Duty of appellate
Court indicated-Costs to respondents for appellants negligence.
c
The plaintiff- Wakf Board's suit for declaration of the right to the
passage and possession thereof having been'msmissed by the Trial Court,
a tide appeal was tiled before the District Judge.

A Court -fee of Rs. 15 was paid on the plaint by the Wakf Board by
an exemption notification. On its. memorandum of appeal, the plaintiff D
bad paid the same amount of court fee.

Respondents asked for dismissal of the memorandum of appeal as It
had not _been sufficiently stamped.

The Additional District Judge dismissed the memorandum of E
appeal.

The High Court did not interfere, when plaintiff took the matter
- -J.. before it.

Hence this appeal by special leave by the plaintiff contending that F
the learned Additional District Judge instead of dismissing the
memorandum of appeal, an opportunity should have been given and the ,
appellant should have bee~ called upon to make good the deficiency.

Allowing the appeal, this Court,
G
~ HELD: 1. When the lower Appellate Court came to hold that the
memorandum of appeal had not been sufficiently stamped, an opportunity
should have been given by the Court to the appellant to make good the
balance court -fee within a time to be indicated and if there was failure to
c~mply with the direction of the Court, the memorandum of appeal could H
179
180 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A have been dismissed. This opportunity having not been given, the )---
dismissal of the appeal was not appropriate. [181F-GJ

2. This is a case of negligence on the part of the appellants
and,therefore, the respondents who have been dragged in these
proceedings for about 10 years should be co~pensated, by way of costs of
B Rs. 1,000. (182 BJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1290 of
1979.. .~

From the Judgment and Order dated 16.8.1977 of the Punjab and
C .Haryana High Court in Res;ar Second Appeal No. 1001 of 1966.
Dhruv Mehta and S.K Mehta (NP) for the Appellants.

J.D. Jain for the Respondent.

The following Order of the Court was delivered:
D
This is an appeal by special leave by the plaintiff-Wakf Board. Its
suit for declaration of the right to the passage and possession thereof
having been dismissed by the Trial Court, a title appeal was filed before the
District Judge of Kamal. By an exemption notification on the plaint in a
suit of this type filed by the Wakf Board, court-fee of Rs. 15 is payable. On
E its memorandum of appeal, the plaintiff had paid the same amount of
court-fee also. Objection was raised to sufficiency of court-fee and respon-
dents asked for dismissal of the. memorandum of appeal as it had not been
sufficiently stamped. As a fact, while court fee of Rs. 638 was payable,
court fee of Rs. is had been paid. This matter was preliminarily considered
by the appellate court and by the order dated 5.5.1966 the Additional
F District Judge sustained the objection. and directtrd the memorandum of
appeal to be dismissed. The High Court did not interfere when plaintiff
took the matter before it. Ultimately special leave had been granted by this
court and at the time of grant of leave, the following order was made:
"As the petitioner is willing to pay deficit court fee on the memo
G of appeal before the District Judge without prejudice, we direct
the issue of show cause notice to the other side."
It is unfortunate that even when that order was i;nade on 27.11.1978
this matter is coming for final disposal almost 13 years thereafter.
The plea raised by the appellant before the learned Additional Dis-
H trict Judge that the appeal was a continuation of the suit and the same
MAHIBULl.A v. CHAMAN l.AL. 181

court fee as was payable on the plaint was appropriate in appeal bad been A
~ rightly negatived. At the trial stage, there was an exemption and since it
was specifically confmed to the trial stage there was no ground to claim the
benefit at the appellate stage also. But when the learned Additional Dis-
trict Judge came to hold that the memorandum of appeal had not been
sufficiently stamped, instead of outright dismissing the memorandum of
appeal, an opportunity should have been given and the appellant should B
have been called upon to make good the deficiency.· Under the provisions
of Order VII of the Code of Civil Procedure which applies to suits, when
_.__ _ the plaint does not bear appropriate court-fee this is the requirement of
the law. Section 107 (2) of the Code of Civil Procedure provides:

"(2) Subject as aforesaid, the Appellate Court shall have the C
same powers and shall perform as nearly as may be the same
duties as are conferred and imposed by this Code on Courts of
original jurisdiction in respect of suits instituted therein."

Section 149 of the Code of Civil Procedure provides:
D
''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 E
such fee is payable shall have the same force and effect as
if such fee had been paid in the first instance."

Reading these two provisions together and keeping fairness of proce-
dure in view, we are inclined to agree with the counsel for the appellant
. that when the lower Appellate Court came to hold that the memorandum F
of appeal had not been sufficiently stamped, an opportunity should have
bi.ten given by the Court to the appellant to make good the balance court-
fee within a time to be indicated and if there was failure to comply with the
direction of· the Court the memorandum of appeal could have been dis-
_,, missed. This opportunity having not been given, we are of the view that the
dismissal of the appeal was not appropriate. G
Counsel for the appellant has undertaken to pay the deficit court fee
as was payable oi;i the memorandum of appeal when the appeal was filed
within four weeks hence. In case the amount of court-fee is so paid, the
182 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A title appeal shall be revived to be dealt with in accordance with law. If
there be failure to do so, the order of dismissal shall stand sustained.

We are inclined to agree with counsel for the respondents that this is
a case of negligence on the part of the appellants and, therefore, the
respondents who have been dragged in these proceedings for about 10
B years should be compensated. We direct that the restoration of the appeal
in the appellate court on payment of appropriate court-fee shall be subject
to the further condition ·of payment by way of costs of Rs. 1,000.
~·
The appeal is disposed of accordingly.

V.P.R. Appeal allowed.

(