SARDAR TAJENDER SINGH GHAMBHIR AND ANOTHERversusSARDAR GURPREET SINGH & OTHERS

                     [2014) 10 S.C.R. 527


SARDAR TAJENDER SINGH GHAMBHIR AND ANOTHER                           A
                         v.
      SARDAR GURPREET SINGH & OTHERS
          (Civil Appeal No. 8660 of 2014)
                   SEPTEMBER 12, 2014
                                                                     B
        [R.M. LODHA, CJI, KURIAN JOSEPH AND
                  R.F. NARIMAN, JJ.]

     COURT FEES ACT, 1870:
                                                                     c
     s. 6(2) and s. 6(3), proviso - Payment of court fee at
appellate stage - Plaint amended adding to valuation of suit
- No orders made by trial court to make up the deficit court
fee - Objection raised by defendants in first appeal - Time
must be granted by court for payment of court fee - In               0
absence of such specific order, sub-ss. (2) and (3) would not
come into operation - An appeal is continuation of suit and
power of appellate court is co-extensive with that of trial court.

     s. 12(ii) - Decision as to valuation of suit - The provision
empowers appellate court to direct a party to make up deficit        E
court fee in plaint at appellate stage.

    The instant appeal arose out of the order of the High
Court by which it set aside the order of the first appellate
court allowing the plaintiff to make up the deficit court fee.       F

     Allowing the appeal, the Court
     HELD: 1.1. In viaw of the provisions of sub-ss. (2) and
(3) of s.6 of the Court Fees Act, 1870 for payment of court-
fee, time must be granted by the court and if despite the            G
order of the court, the deficient court-fee is not paid, then
the consequence as provided therein must follow. The
expression 'plaint' referred to in sub-ss.(2) and (3) of s.6

                               527                                   H
    528      SUPREME COURT REPORTS             [2014] 10 S.C.R.


A may, in the context, be read to include 'memorandum of ·
  appeal' as well. [para 8-9] [533-C; 534-B]
      1.2. In the instant case, the first appellate court in its
  order rightly observed that after amendment of plaint and
  consequent amendment in valuation, the trial court did
8
  not pass any order specifying time for payment of the .
  deficient court-fee. Obviously, in the absence of such
  specific order, sub-ss. (2) and (3) of s.6of1870 Act would
  not come into operation against the plaintiff. [para 1O]
  [534-C-D]
c
       1.3. The High Court also erred in holding that
  deficiency in court-fee in respect of plaint cannot be made
  good during the appellate stage. An appeal is the
  continuation of suit and the power of the appellate court
D is co-extensive with that of the trial court. What could be
  done by the trial court in the proceeding of the suit, can
  always be done by the appellate court in the interest of
  justice. [para 12] [534-F-G]
      1.4. Clause (ii) of s.12 of 1870 Act clearly empowers
E the appellate court to direct a party to make up deficit
  court-fee in the plaint at the appellate stage. [para 14]
  [535-D]
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
F   8660 of 2014.
        From the Judgment & Order dated 23.11.2012 of the High
    Court of Uttarakhand at Nainital in Writ Petition No. 376 of
    2012.
G       Shyam Divam, Madhvi Divan, Ranjeeta Rohtagi, Manan
    Verma for the Appellants.
        Jayant Bhushan, Rajeev Kr. Singh, Anish Dayal, Siddharth
    Vaid, Bipin B. Singh for the Respondents.
          The Judgment of the Court was delivered by
H
SARDAR TAJENDER SINGH GHAMBHIR v. SARDAR 529
            GURPREET SINGH
     R.M.LODHA, CJI. 1. Leave granted.                                 A

     2. The appellants are plaintiffs in the suit for declaration
and injunction. It is not in dispute that adequate court fee in that
regard was paid by the plaintiffs. Lateran, reliefs were amended
and prayers for compensation and utilization were also made.
                                                                       B
However, on the amended valuation, there was deficiency in
payment of court-fee but to make up such deficiency, no order
was passed by the trial court.

      3. The present respondent Nos. 1 & 2 (defendants in the
suit) preferred first appeal which was heard by the Additional         C
District Judge, Dehradun. In the first appeal, an objection
regarding deficit court-fee was raised by the defendants. The
first appellate court, however, observed that while granting
amendment in the plaint, the trial court did not prescribe any
time limit in connection with the payment of court-fee and even        D
no objection was raised by the defendants in that regard. The
aspect of deficit court-fee came to the knowledge of the
plaintiffs at the time of preparation of decree only and,
therefore, an opportunity deserved to be granted to the plaintiffs
to make up the deficit court-fee in the interest of justice.           E

    4. Against this order of the first appellate court, respondent
Nos. 1 and 2 filed a writ petition under Article 227 of the
Constitution of India. The High Court in paragraph 7 of the
impugned order held as under:
                                                                       F
     In the case in hand, after amendment in the valuation
     clause of the plaint, it was duty of the plaintiffs to make
     good the deficiency in the court fee. Deficiency of the court
     fee could be made good in the trial court only. Perusal of
     sub-section (2) of Section 6 of the Court Fees Act                G
     transpires that no plaint shall be acted upon, unless
     deficiencies in the court fee are made good. Court Fees
     Act further provides that in no case, the judgment shall be
     delivered unless the deficiency in court fee has been made
     good. Section 149 of C.P.C. though gives powers to the            H
     530      SUPREME COURT REPORTS                  (2014] 10 S.C.R .


A         Court to allow the plaintiff to pay the-deficit court fee but
          such power is given to the Court before the disposal of
          suit. Thus, permission for payment of additional court fee
          odor making good the deficiency in Court fee could only
          be granted during the pendency of suit. In absence of
B        ·payment of sufficient court fee the judgment could not be
          delivered. Deficiency of court fee in respect of plaint cannot
          be made good during the appellate stage. Such
          permission could not be granted by the appellate court
          under Section 151 C.P.C .. In case such permission is
c         permitted to the parties, then it would not only be per~se
          illegal but would also be a bad precedent since all litigants
          would adopt this method of paying court fee only after
          obtaining relief from the trial court, before the Appellate
          Court. I have no hesitation to say that decision making
          process of Additional District Judge/FTC II, Dehradun in
D
          per-se vitiated and cannot be appreciated .. He has
          exercised his jurisdiction with material irregularity and order
          passed by him deserves .to be set-aside.

         5. It is this or_der which is challenged in the present appeal,
E   by special leave. The High Court has heavily relied upon the
    provisions contained in sub-sections (2) & (3) of Section 6 of
    the Court-fees Act, 1870 (as applicable in U.P.) (for short "1870
    Act") which provide that no plaint shall be acted upon unless
    deficiency in court-fee is made good and further provision
  F contained in sub-section (3) of Section 6 that in no case the
    judgment shall be delivered unless the deficiency in court-fee
    has been made good. The High Court was also of the view that
    deficiency in court"fee in respect of plaint cannot be made good
    during the appellate stage and such permission could not be
. G granted by the appellate court under Section 149 or Section
    151 of the Civil Procedure Code.

         6. We. have heard Mr. Shyam Divan, learned senior
    counsel for the appellants and Mr. Jayant Bhushan, learned
    senior counsel for the respondent Nos. 1 and 2 at quite some
· H length.
SARDAR TAJENDER SINGH GHAMBHIR v. SARDAR 531
     GURPREET SINGH [R.M. LODHA, CJI.]
    7. In our view, the impugned order can not be sustained          A
for more than one reason. In the first place, the High Court has
not properly construed sub-sections (2) & (3) of Section 6 of
the 1870 Act. For proper appreciation of sub-sections (2) & (3)
of Section 6, we quote the entire Section 6 of the 1870 Act
which reads as under:                                                B

    6. Fees on documents filed, etc., in Mufassil Courts or in
    Public Offices -(1) Except in the courts hereinbefore
    mentioned, no document of any kinds specified as
    chargeable in the first or second Schedule to this Act           C
    annexed shall be filed, exhibited or recorded in any Court
    of Justice, or shall be received or furnished by any public
    officer, unless in respect of such document there be paid
    a fee of an amount not less than that indicated by either
    of the said Schedules as the proper fee for such document:
                                                                     D
     [Provided that where such document relates to any suit,
     appeal or other proceeding under [any law relating to land
     tenures or land revenue] the fee payable shall be three-
     quarters of the fee indicated in either of the said Schedules
     except where the amount or value of the subject-matter of       E
     the suit, appeal or proceeding to which it relates exceeds
     Rs. 500:

     Provided further that the fee payable in respect of any such
     document as is mentioned in the foregoing proviso shall
     not be less than [one and one-forth] of that indicated by
                                                                     F
     either of the said Schedules before the first day of May,
     1936].

     {Explanation - Where the amount of fee prescribed in the
     Schedule contain any fraction of a rupee below [twenty-five     G
     naye paisa] or above [twenty-five naye paise] but below
     [fifty naye paise] or above [fifty naye paise] but below
     [seventy-five naye paise] or above [seventy-five naye paise]
     but below one rupee, the proper fee shall be an amount
     rounded off to the next higher quarter of a rupee as            H
    532       SUPREME COURT REPORTS                 [2014) 10 S.C.R.


A         hereinafter appearing in the said Schedules].

          (2) Notwithstanding the provisions of sub-section (1 ), a
          Court may receive plaint or memorandum of appeal in
          respect of which an insufficient fee has been paid, but no
          such plaint or memorandum of appeal shall be acted upon
B
          unless the plaintiff or the appellant, as the case may be,
          makes good the deficiency in court-fee within such time
          as may from time to time be fixed by the court.

       [(3) If a question of deficiency in court-fee in respect of any
c      plaint or memorandum of appeal is raised by an officer
       mentioned in Section 24-A the Court shall, before
       proceeding further with the suit or appeal, record a finding
     . whetherthe court-fee paid is sufficient or not. If the Court
       finds that.the court-fee paid is insufficient, it shall call upon
D      the plaintiff or the appellant, as the case may be, to make
       good the deficienty within such times as it may fix, and in
       case of default shall reject the plaint or memorandum of
       appeal: -
                                            "'
          Provided that the Court may, for sufficient reasons to be
E
          recorded, proceed withthe suit or appeal ifthe plaintiff or
          the appellant, as the case may be, give security, to the
          satisfaction of the Court, for payment of the deficiency in
          court-fee within such furthertimes as the.Cciurt1 may allow.
          In no case, however, shall judgment be delivered unless
F
          the deficiency in court-fee has been made good, arid if the
          deficiency is not made good within such time as the Court
          may from time to time allow, the Court may dismiss the
             .
          suit or appeal.
                  ,




G        (4) Whenever a question of the proper amount bf court-fee
      · ·payable is raised·otherwise than under sub-section-(3), the
         Court shall decide such question before proceeding with
         any other issue: •,   , r ,.                          .


          (5) In case the deficiency in court-fee is made good within
H
SARDAR TAJENDER SINGH GHAMBHIR v. SARDAR 533
     GURPREET SINGH [R.M. LODHA, CJI.]
    the time allowed by the Court, the date of the institution of     A
    the suit or appeal shall be deemed to be the date on which
    the suit was filed or the appeal presented. ,

    (6) In all cases in which the report of the officer referred to
    in sub-section (3) is not accepted by the Court, a copy of        8
    the findings of the Court together with a copy of the plaint
    shall forthwith be sent to the [Commissioner of Stamps]].

      8. While referring the provisions of sub-sections (2) and
(3) of Section 6, we shall refer to 'plaint' which for the purposes
of this discussion may be read to include 'memorandum of C
appeal' as well. Sub-section (2) of Section 6 provides that in
plaint in which sufficient court-fee has not been paid, such plaint·
shall not be acted upon unless the plaintiff makes good the
deficiency in court-fee within such time as may.from time to time .
be fixed by the Court. Sub-section (3) provides that if a question D
of deficiency in court-fee in respect of any plaint is raised and
the Court finds that the court-fee paid is insufficient, it shall ask
the plaintiff to make good the deficiency within the time which
may be granted and in case of default, the plaint shall be
rejected. The main provision of sub-section (3) mandates the E
Court to record a finding whether court-fee paid is sufficient on
the question being raised by the concerned officer under
Section 24A. It further provides that in answer to that question
if the Court finds that court-fee paid is deficient, the Court may
allow plaintiff to make up that deficiency within time so fixed F
by the Court. Then there is a proviso appended to subcsection
(3) which provides that Court may, for sufficient reasons to be
recorded, proceed with the suit if security is given by the plaintiff
for payment of the deficiency in court-fee within time that may
be granted by the court. It, however, requires the Court not to G
deliver the judgment till such time deficiency is not recovered
and if the deficiency in court-fee is not made good within such
time as the Court may from time to time allow, the Court may
dismiss the suit or appeal.        ·           ·

     9. The scheme of the above provisions is clear. It casts         H
    534      SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A   duty on the Court to determine as to whether or not court-fee
    paid on the plaint is deficient and if the court-fee is found to be
    deficient, then give an opportunity to the plaintiff to make up
    such deficiency within the time that may be fixed by the Court.
    The important thread that runs through sub-sections (2) and (3)
B   of Section 6 of 1870 Act is that for payment of court-fee, time
    must be granted by the court and if despite the order of the
    court, deficient court-fee is not paid, then consequence as
    provided therein must follow.

        10. Insofar as present case is concerned, the first
C appellate court in its order rightly observed that after
  amendment of plaint and consequent amendment in valuation,
  the trial court did not pass any order specifying time for payment
  of deficient court-fee. Obviously, in the absence of such specific
  order, sub-sections (2) & (3) of Section 6 of 1870 Act would
D not come into operation against the plaintiff.

         11. The argument of the learned senior counsel for the
    respondent Nos. 1 and 2 on construction of sub-sections (2) &
    (3) of Section 6 of 1870 Act cannot be accepted. The High
E   Court was clearly in error in invoking the above provision without
    appreciating the fact that there was no order by the trial court
    directing the plaintiffs to make good the deficit court-fee within
    a particular time.

       12. The High Court was also in error in holding that
F deficiency in court-fee in respect of plaint cannot be made good
  during the appellate stage. In this regard, the High Court,
  overlooked well known legal position that appeal is continuation
  of suit and the power of the appellate court is co-extensive with
  that of the trial court. It failed to bear in mind that what could be
G done by the trial court in the proceeding of the suit, can always
  be done by the appellate court in the interest of justice.

        13. Secondly, the High Court failed to consider clause (ii)
    of Section 12 of 1870 Act which reads:
H
SARDAR TAJENDER SINGH GHAMBHIR v. SARDAR 535
     GURPREET SINGH [R.M. LODHA, CJI.]
    (ii) Butwhenever any such suit comes befote.a<Court of              A
    appeal, reference or revision, if such Court considers that
    the said question has been wrongly decided to the
    detriment of the revenue, it $hall require the party by whom
    such fee has been paid, to pay within such time as may
    be fixed by it, so much additional fee as would have been           B
    payable had the question been rightly decided. If such
    additional fee is not paid within the time fixed and the
    defaulter is the appellant, the appeal shall be dismissed,
    but if the defaulter is the respondent the Court shall inforrri
    the Collector who shall recover the deficiency as if it were        c
    an arrear of land revenue.                               ·

     14. The above provision clearly empowers the appellate
court to direct a party to make up deficitcourt"fee in the plaint
at the appellate stage. The power exercised by' the first
appellate court can be traced to clause (ii) of Section 12 of           D
1870 Act as well.

     15. The order of the first appellate court being eminently
just and proper, in our view, there was no justification for the
High Court to invoke its power under Article 227 of the                 E
Constitution of India and interfere with an orderwhich effectively
advanced the cause of ju$tice.

     16. For all these reasons, the impugned order is
unsustainable in the eye of law and deserves to set-aside and
is set-aside.
                                                                        F

     17. Civil Appeal is allowed as above with no order as to
costs.
Rajendra Prasad                                     Appeal ·al.lowed.