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R.S. Narula, J.—A decree for the payment of Rs. 1,54,666.64 with proportionate costs of the suit was passed by the Court of Shri Om Parkash Aggarwala, Senior Subordinate Judge, Gurdaspur, on May 13, 1968, in favour of Respondent No. 1, against the Appellants and Sat Pal Respondent No. 2. Appellant No. 1, a partnership firm and Appellant No. 2, a partner thereof filed Regular First Appeal 265 of 1968, against the decree of the trial Court, and impleaded the third judgment-debtor, namely, Sat Pal as Respondent No. 2 in the appeal. Whereas the court-fee of Rs. 3,856.80 P. was payable on the memorandum of appeal, the Appellants have paid a sum of Rs. 100 only as court-fee on this appeal. The memorandum of appeal is accompanied by an application u/s 149 of the CPC (CM. 2429-C of 1968), wherein it has been alleged that Sat Pal Respondent No. 2, the other partner of Appellant No. 1, has clandestinely removed all the valuable assets of the partnership firm and has refused to contribute anything towards the expenses of the appeal. It has bees added in the application that Appellant No. 2, who is the only other partner of Appellant No. 1, has no movable or immovable property of his own from which he could raise sufficient funds for paying the requisite court-fee. It is stated in the application that the Appellants have not been able to raise the necessary funds despite best efforts, even by obtaining a loan. Since the time for seeking leave of this Court under Order 44 Rule 1 of the CPC to prefer the appeal in forma pauperis had already expired, the Appellants have prayed that they may be allowed three month''s time (with effect from 6th September, 1968) to pay the balance of the court-fee, as it was impossible for them to raise the necessary funds immediately. By order dated October 8, 1968, notice of the miscellaneous application was issued to the Respondents returnable for October 30, 1968. The application has been contested by Respondent No. 1 who filed an affidavit of J. O. Lal, Attorney of Respondent No. 1, dated November 6, 1968. In the said affidavit it has been alleged inter alia that the Appellant No. 1, had received an import licence of the value of Rs. 10,000 during the previous two months, and that Appellant No. 1 had received the sum of Rs. 10,000 by disposing of the licence. Objection was also taken by Respondent No. 1, to the vague allegation made by the Appellants regarding the removal of the assets of the firm by Respondent No. 2, inasmuch as no date or nature of the property said to have been removed by Respondent No. 2, had been specified by the Appellants. It was further alleged that Appellant No. 2 had received property (machinery) of the value of Rs. 17,500 from Messrs Arun Spinning Mills of Amritsar during the previous two months, which had been installed by Tilak Raj in the names of his sons for running some woollen spindles. It was lastly alleged that Tilak Raj Appellant No. 2 was carrying on business in different names with a view to avoid his heavy indebtedness and that the family of Appellant No. 2 owned a car, a grand bungalow at G.T. Road, Amritsar, and was living in "great style". A counter-affidavit of Tilak Raj Appellant No. 2, dated November 18, 1968, has been filed in reply to the affidavit of Respondent No. 1. Tilak Raj has admitted in that affidavit that Appellant No. 1 did receive an import licence of the value of Rs. 10,000, and that the said licence had been disposed of in or about the second or third week of August, 1968, but had added that the licence was disposed of by Sat Pal Respondent No. 2, who was still continuing as a partner with Tilak Raj and that Sat Pal had removed the valuable assets etc., after the said disposal of the licence. The other allegations made by the Respondents have been denied and it has been stated that Tilak Raj does not own any car, bungalow or any other immovable property.
When the miscellaneous application came up for hearing before Jain, J., on November 18, 1968, the learned Judge observed that it would be just and proper that the application should be heard by a Division Bench as the appeal would have to be heard by a Division Bench, in case there is the possibility of its dismissal in limine in the eventuality of the application u/s 149 of the CPC not being granted. That is how the miscellaneous application has been listed before us.
Mr. Bhaila, the learned Counsel for the Appellants, has relied on the special circumstances mentioned in the miscellaneous application for invoking the discretionary powers of this Court u/s 149 of the Code. He has fairly and frankly conceded that mere poverty of the Appellants is no ground for not paying the requisite court-fee within time or for extension of time for making up deficiency in court-fee. He referred in this connection to the Full Bench judgment of the Allahabad High Court in S. Wajid Ali Vs. Mt. Isar Bano Urf Isar Fatma, , where it was held that Section 149 of the Code has to be read as a proviso to Section 4 of the Court-fees Act and that as a result of reading the said two provisions together the law may be stated thus:
(1) Ordinarily a document insufficiently stamped is not to be received, filed, exhibited or recorded in a Court;
(2) When, however, an insufficiently stamped document is presented to the Court, the Court has to decide whether it will exercise its discretion in allowing time to the party-presenting the document to make good the deficiency;
(3) If it decides that time should be granted, it will return the document as insufficiently, stamped;
(4) If it decides that time should be granted it will give time to the party to make good the deficiency, and in order to enable the party to make good the deficiency within the time allowed, the Court will tentatively for that limited purpose receive the document;
(5) If the deficiency is made good within the time fixed, the document is to be deemed to have been presented and received on the date on which it was originally filed; and
(6) If the deficiency is not so made good the document is to be returned as insufficiently stamped by virtue of Section 4 of the Court-fees Act.
While so stating the law, the learned Judges of the Allahabad High Court referred to the discretion of the Court u/s 149 of the Code and held that the question whether poverty or inability to pay full court-fee at the time of filing an appeal be regarded as a sufficient ground for the exercise of the discretion of the Court in extending time u/s 149 can be answered only with reference to the facts of a particular case. Their Lordships made it clear that a mere allegation that a party was unable to pay court-fee on the date when he presented an insufficiently stamped document was not enough for the exercise of the discretion in his favour, but that if further circumstances are shown which satisfy the Court that the inability to pay court-fee has been caused by circumstances beyond the litigant''s control, or if substantial amount of court-fee has been paid and a comparatively small amount remains to be paid thus showing the bona fides of the litigant, time may be extended In our opinion this case does not fall within the special circumstances to which the Full Bench of the Allahabad High Court referred. Only an insignificant part of the court-fee has been paid and the major part of the amount payable has been withheld by the Appellants. The special circumstances referred to in the application of the Appellants are neither convincing nor satisfy us of the absolute inability of the Appellants to have paid the court-fee within time. If the facts stated in the application were correct that the Appellants were not possessed of any property from which they could have paid the requisite court-fee, they were indeed paupers within the meaning of that expression as used in the Code and should have resorted to proceedings under Order 44 Rule 1. Section 149 of the CPC cannot be used as an alternative or substitute for proceedings under Order 44 Rule 1 and is not a via-media between the normal procedure and the one prescribed for paupers. Nor is it easy to believe that everything belonging to the partnership firm including even the cash amount realised within two months prior to the institution of the appeal was taken away by Sat Pal Respondent No. 2 so as to leave the Appellants with nothing in hand, While admitting the receipt of Rs. 10,000 by disposal of the import licence in question, Appellant No. 2 has not clearly and unequivocally stated that the entire sum of Rs. 10,000 was taken away by Sat Pal. He has given a beautifully vague reply by merely saying that the licence was disposed of when Sat Pal was still acting as a partner and that it was subsequently that Sat Pal removed all the veluable assets etc., of the firm. In spite of the challenge thrown at the face of the Appellants in paragraph 4 of Mr. J. O. Lal''s affidavit to the effect that no details of the property taken away by Sat Pal or of the date on which the property was taken away have been given, all that has been stated in the counter-affidavit of Tilak Raj is that Appellant No. 1 or 2 did not own any immovable property and the movables were removed by Sat Pal. That means that the Appellants are not prepared to disclose to the Court the nature and particulars of the property said to have been removed by Sat Pal nor the date on which Sat Pal is alleged to have removed the same. In these circumstances we cannot hold that any special grounds have been made out in the application under disposal justifying the invoking of the jurisdiction of this Court u/s 149 of the Code.
Mr. Bhalla then stated that Sub-rule (c) of Rule 11 of Order 7 of the Code applies to a memorandum of appeal by operation of Sub-section (2) of Section 107 of the Code. Order 7 Rule 11(c) reads as follows:
"The plaint shall be rejected in the following cases:-
(a)______________________
(b)______________________
(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the Plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so.
Sub-section (2) of Section 107 states that subject to such conditions and limitations that may be prescribed, 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 CPC on Courts of original jurisdiction in respect of suits instituted therein. Mr. Bhalla referred to a Division Bench judgment of the Patna High Court in Ramgati Singh Vs. Shitab Singh and Another, . In that case it was held by Harries C.J. and Rowland J. that a memorandum of appeal not sufficiently stamped cannot be rejected summarily on that ground unless ah opportunity is given to the Appellant to explain or to make good the deficiency within a stated time. Similar view has been consistently taken by the Patna High Court in subsequent years. The last case of that Court to which reference has been made is of Mahabir Ram and Another Vs. Kapildeo Pathak and Others, .
Counsel then referred to a Division Bench judgment of the Bombay High Court in Achut Ramchandra Pai Vs. Nagappa Bab Balgya, . It was held in that case that where a Plaintiff or an Appellant is within time in the actual presentation of his plaint or memorandum of appeal, though matters cannot be carried further owing to the document being insufficiently stamped, he is entitled to some further time for the payment of court-fees. The learned Judges further held that the concession referred to in Section 149 of the Code is not restricted to cases where there is a bono fide misunderstanding of the law as to valuation; the inference is that the legislature intended that the Court should have a free and unshackled discretion in this matter. The ratio of the judgment was based on the finding that the provisions of Order 7 Rule 11(c) of the Code apply to petitions of appeal by operation of Section 107. Counsel then relied on a Division Bench judgment of the Oudh Chief Court in AIR 1937 414 (Oudh) . In that case it was held that the Appellate Court has discretion unedr Section 149 of the Code to allow the Appellant reasonable time within which to make good the deficiency before dismissing his appeal under Order 7 Rule 11(c) of the Code. The learned Judges held that where the Appellant filed an appeal within limitation but on an insufficiently stamped paper and along with the appeal he prayed for granting him time to make good the deficiency, but without taking any notice of the prayer the Appellate Court dismissed the appeal as time-barred for not having made up the deficiency within limitation, the order dismissing the appeal was bad as the Appellate Court Could have granted time to the Appellant not only u/s 149 but also under Order 7 Rule 11(c) of the Code of Civil Procedure.
Mr. Bhalla lastly referred to the pronouncement of the Supreme Court in Mahasay Ganesh Prasad Ray and Another Vs. Narendra Nath Sen and Others, . While discussing the scope of the jurisdiction of a High Court to interfere with the exercise of discretion by a Court of appeal u/s 149 of the Code of Civil Procedure, their Lordships held in Mahasay Ganesh Proshad Ray''s case that the question of payment of court-fee is primarily a matter between the Government and the person concerned and therefore, where the High Court in the exercise of its discretion allows the Appellant to amend his memorandum of appeal and grants time for payment of deficient court-fee u/s 149, the other party cannot attack the order on the ground that it takes away his valuable right to plead the bar of limitation. The ratio of the judgment of the Supreme Court in the above said case is wholly irrelevant for deciding the question that faces us.
Mr. Bhagirath Dass, learned Counsel for the decree-holder-Respondents, referred to a Division Bench judgment of the Lahore High Court in Balwant Singh v. Jagjit Singh, Vendee and Anr. AIR 1947 Lah 210, on the question of applicability of Order 7 Rule 11 of the CPC to a memorandum of appeal. Abdul Rashid, Acting C.J., who wrote the main judgment of the Division Bench referred to the judgment of the Oudh Chief Court in Husain Ali Khan and Ors. v. Ambika Prasad AIR 1937 Oudh 414 (supra), and to the judgment of the Patna High Court in Ramgati Singh Vs. Shitab Singh and Another, and to some earlier cases decided by the Madras High Court, and then observed that there was a conflict of opinion on the point whether the provisions of Order 7 Rule 11 apply to appeals or not. It was noticed that according to the High Courts of Bombay, Calcutta and Patna, and the Chief Court of Oudh, the provisions of Order 7 Rule 11 apply to memoranda of appeals by virtue of Section 107 of the Code, but that a contrary view had been taken by the High Courts of Allahabad, Lahore and Madras and by the Judicial Commissioners'' Courts at Nagpur and Peshawar. The latter view, observed Rashid, Acting C.J., proceeds on the ground that Section 149 provides for memoranda of appeals, and this shows that the provisions of Order 7, Rule 11, where plaints are expressly mentioned, do not apply to memoranda of appeals. The learned Acting C.J., then proceeded to hold as below:-
In my opinion, the provisions of Order 7 Rule 11, CPC do not apply to memoranda of appeals. If an insufficiently stamped memorandum of appeal is presented in an appellate Court, it cannot be held that a proper appeal has been filed at all. The memorandum of appeal is a piece of paper which may develop into a proper memorandum of appeal if the Court extends time for the payment of the deficient court-fee u/s 149, Code of Civil Procedure. Once the Court has exercised its powers u/s 149 of the Code, the memorandum of appeal would be validated retrospectively from the date on which it was filed in an appellate Court as it is laid down by Section 149 that upon such payment being made the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. If, on the other hand, the Court refused to extend time under the provisions of Section 149, the document presented in the appellate Court will never become a proper memorandum of appeal. Reference may be made in this connection to Section 6, Court-fees Act, which lays down that no document specified as chargeable in Schedule 1 or 2 of the Act 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 documents. This question has repeatedly formed the subject-matter of decisions in this Court. Reference may be made in this connection to Shahadat v. Hukam Singh, AIR 1924 Lah 401 . It was laid down in that case that where an appeal was filed in the High Court without the order appealed against being stamped, and the memorandum of appeal was returned and filed again with the proper stamp after the period of limitation had expired, the appeal must be taken to have been filed on the day when the proper stamp had been provided. If the Court does not extend the time u/s 5, Limitation Act and Section 149, Code of Civil Procedure, such an anneal is liable to dismissal as being barred by limitation. In AIR 1939 124 (Lahore) , it was held that where an appeal is filed, but the copy of the decree is insufficiently stamped, the appeal should be deemed to be filed, for purposes of limitation, only on the date when it is filed again after making up the deficiency. These decisions were given by Single Judges. There is, however, a Bench ruling of this Court to the same effect. It is reported as 2 Lahore 1. It was held in that case that an insufficiently stamped appeal cannot be considered to have been presented till the day on which the memorandum of appeal was properly stamped. Such an appeal can only be taken into consideration by the Court if there is sufficient cause for extending time u/s 5, Limitation Act. So far as this Court is concerned no decision to the contrary has been brought to our notice. It must be held, therefore, that in the present case the appeal was filed on 17th November. 1944, when the Appellant made up the deficiency in the court-fee.
G.D. Khosal, J., who agreed with the Acting C.J., further observed as below:
The first point to consider is whether under the provisions of Order 7 Rule 11, in so far as it applies to plaints, a Court is bound to extend time. Certain observations made by Din Mohammad J. in AIR 1938 Lah 361 were brought to our notice, and it was contended by Mr. Rup Chand that the Court is not bound to extend time even in the case of plaints. There is overwhelming authority to the contrary, and I am not, as at present advised prepared to differ from the view expressed by a large number of ''Judges of almost all the High Courts of India. There are two decisions of the Punjab Chief Court which lay down that a Court is bound to extend time in the case of plaints: 1893 39 J.C. 766 3 P.R. With great respect to Din Mohammad J., I do not think that the reasons upon which the decision in 3 P.R. 1893 proceeds were unsound, but a more careful consideration of this point would no+ be necessary as I agree with my learned brother that Order 7 Rule 11, CPC does not apply to memoranda of appeals. There are some decisions of the other High Courts which take the view that Order 7 Rule 11, Code of Civil Procedure, does apply to memoranda of appeals, but the view of this Court has consistently been to the contrary. There is also a decision of the Madras High Court, Pamidimukkala Sitharamayya and Others Vs. Ivaturi Ramayya and Another, , in which the point was specifically considered by Varadachariar J. and he expressed the view that Order 7 Rule 11, Code of Civil Procedure, did not apply to memoranda of appeals. This point appears to have arisen only once in a case heard by this Court, namely, AIR 1936 935 (Lahore) . But, in a number of other cases, it has been that the memoranda of appeals are not governed by the provisions of Order 7 Rule 11, Code of Civil Procedure. Reference may be made in this connection to AIR 1936 935 (Lahore) , I Lahore 229, 1 Lahore 234, 102 I.C. 615, and 6 Lahore 238. It appears to me that the provisions of Section 107 CPC do not lay down that Order 7 Rule 11, CPC applies to memoranda of appeals. Order 7 governs the filing, admission and rejection of plaints, and Order 41, Code of Civil Procedure, lays down similar provisions in the case of appeals, and, in my view, therefore, Order 7 Rule 11, Code of Civil Procedure, does not cover the case of memoranda of appeals, and even if in the case of plaints a Court is obliged to extend time to take up the deficiency in court-fee no such obligation is cast upon the Court in the case of memoranda of appeals. The only provision of law under which an extension of time can be given in the case of a memoranda of appeal is Section 149, Code of Civil Procedure. Under this section, the Court can in its discretion extend the time within which the insufficiency of the stamp on a memoradum of appeal can be made good. From this, it must follow that until such a discretionary order is given, the memorandum of appeal must be considered to be insufficiently stamped, and that being so, the provisions of Section 6, Court-fees Act and Section 3, Limitation Act, will apply, and by virtue of these provisions the memorandum of appeal must be considered to have been insufficiently stamped, and the appeal must be considered to be barred by time.
The latest judgment of the Madras High Court taking the same view is of Varadachariar and Pandrang Row, JJ.. in Pamidimukhala Sitharamayya and Ors. v. Ivaturi Ramayya and Anr. ILR 1957 P&H. 1719 : AIR 1957 P&H. 317. The learned Judges of the Madras High Court also after considering a large number of previous cases came to the conclusion that the provisions of Order 7, Rule 11(c) of the CPC do not apply to appeals and that the appellate Court is entitled to reject an appeal if the full court-fee has not been paid without calling upon the Appellant to pay the deficient court-fee, because in so far as the memorandum of appeal was concerned, express provision has been made in Order 41 Rule 3 for its rejection on the grounds stated in that rule. After hearing the learned Counsel for the parties at length and after careful consideration of the matter we are inclined to agree with the view taken by the Division Bench of the Madras High Court in Pamid-mukhala Sitharamayya''s case ILR 1957 P&H. 1719 : AIR 1957 P&H. 317 (supra). The provisions of Section 107(2) have been expressly made subject to such conditions and limitations "as may be prescribed". In Section 2(16) "prescribed" is stated to mean "prescribed by rules". Whereas specific-provision has been made in Rule 11 of Order 7 relating to plaints, no corresponding provision has been made to that effect in Order 41 of the Code which contains the entire relevant procedure relating to appeals. Agreeing with the reasoning on which the judgment of the Division Bench of the Lahore High Court was based, we do not appear to be bound to allow the Appellants an opportunity to make up the deficiency in court-fee after the expiry of the period of limitation for preferring the appeal particularly in a case where there is no dispute about the quantum of the court-fee payable, but the Appellants have knowingly and deliberately paid deficient court-fee on the solitary ground that they were not possessed of sufficient funds to pay the requisite court-fee within the period of limitation. Since the petition of appeal did not bear the requisite court-fee, no proper appeal has in fact been filed in this case.
In these circumstances the application u/s 149 of the Code fails and is dismissed and the memorandum of the Regular First Appeal itself is rejected as not bearing the requisite court-fee. The parties are, however, left to bear their own costs.