State of Jammu & Kashmir and Others vs Zamindaran of Villages Khanpora and Others

H. Imtiyaz Hussain, J.—The present application has been filed by the State of Jammu and Kashmir through Principal Secretary to

Government Industries and Commerce Department Srinagar with the prayer that they be allowed to deposit the deficit Court-fee.

The matter pertains to Land Acquisition proceedings in village Khanpora District Budgam. The reference made in the proceedings to the

Learned District Judge Budgam was disposed of by the Learned District Judge on 12.11.2000.Against the judgment and decree passed by the

Learned District Judge, State of Jammu and Kashmir has filed an appeal before this Court which stands admitted by order of this court dated

17.03.2004. The State has not paid requisite court fee and in para 8 of the memorandum of Appeal the Appellants have undertaken to pay the

requisite court fee on admission of the Appeal. Since no Court fee was paid, the present application has been moved by the State seeking

permission to pay the same.

The non-applicants / respondents have vehemently opposed the application Mr. S.T. Hussain appearing for the respondents/non-applicants

submits that it is not a case of deficit court fee, but a case where the State has deliberately avoided to pay the court fee and has made its payment

conditional. He has taken a serious objection to para 8 of the memorandum of Appeal and has submitted that in view of the law laid down by the

Hon'ble Apex Court in Buta Singh (Dead) by L. Rs. Vs. Union of India, this Court cannot exercise its discretion in favour of the State.

Heard. Considered the matter.

State has not paid the court fee as required under the provisions of law at the time of filing of the memorandum of Appeal, The plea taken by the

State in para 8 of the memorandum of Appeal is also not happily worded. The impression goes as if the State is entering into bargaining and that it

will pay the court fee only if the Appeal is admitted to hearing. Such a practice should not be encouraged. Concerned functionaries of the State

should know that the State has to pay the court-fee like an ordinary litigant unless exempted to do so. Taking such pleas depicts how casually they

are taking the matters where such a huge public money is involved.

Notwithstanding this fact, I feel that the Court has to see that substantial justice is done in such matters.

Section 149 of the CPC on which the Learned Counsel for the State has relied gives discretionary powers to the Court to extend the time of

payment of court fee. In Butta Singh v. Union of India (Supra) relied upon by the Learned Counsel for the respondents/non-applicants, the Apex

court observed as under:-

There are no bona fides on their part. The aid of Section 149 could be taken only when the party was not able to play Court-fee in circumstances

beyond his control or under unavoidable circumstances and the Court would be justified in an appropriate case to exercise the discretionary power

u/s 149, after giving due notice to the affected party. But that was not the situation in this case. Under the relevant provisions of the Court-fee Act

applicable to appeals filed in the High Court of the Punjab and Haryana, the claimants are required to value the appeals in the MOAs and need to

pay the required Court-fee. Thereafter the appeal would be admitted and the notice would go to the respondents. The respondents would be pout

on notice of the amount, the appellant would be claiming so as to properly canvass the correctness of the claim or entitlement. The claim cannot be

kept in uncertainty. If in appeal u/s 54 of the Land Acquisition Act the amount is initially kept low and then depending upon the mood of the

appellate Court, payment of deficit Court-fee is sought to be made, it would create unhealthy practice and would become a game of chess and a

matter of chance. That practice would not be conducive and proper for orderly conduct of litigation"".

The Apex Court has itself laid down the procedure which is to be adopted in a case where the party has not paid the requisite Court fee. It is

provides that the Registry should make a note of it and the party concerned should be asked to pay the Court -fee within the fixed time. It is only

after the party fails to pay the Court-fee within the time allowed by the Court that the Court will proceed to pass an effective order on the Appeal.

Hon'ble Court in this behalf observed:-

It is the duty of the Registry before admitting the appeal to point out to the Appellant or his counsel that deficit court fee is payable on the MOA

and some reasonable time may be given for payment of the Court-fee. The MOA would be returned to do the needful. If the deficit court fee is not

made up and presented within the time enlarged u/s 148 CPC, there would be no Appeal in the eye of law unless the delay is condoned. If the

party deliberately suit his convenience paid insufficient Court-fee, the mistake is not a bona fide but one of choice made by the party in making the

deficit Court-fee. In that situation, even after pointing out the need to make the Court-fee and given time, if the Court fee is not paid and MOA is

represented within the enlarged time, it would be open to the Court either to reject the MOA or refuse to condone the delay for not showing

sufficient cause thereon.

In the present case, the Registry has in its note at the time of presentation of the Appeal reported that the Court-fee has not been paid in terms

of the Court-fee Act. The Appellants should have been given an opportunity to pay the same and this should have been done before admitting the

Appeal. The Appeal has already been admitted. Now it will not be proper to dismiss it on the ground of nonpayment of Court-fee without

affording the party concerned an opportunity to pay the same. Otherwise also it is now settled law as has been held by the Hon'ble Supreme Court

in Sri Ratnavaramaraja Vs. Smt. Vimla, that whether proper Court-fee is paid on a plaint is primarily a question between the Plaintiff and the State

and the defendant who may believe and even honestly, that proper Court fee has not been paid by the Plaintiff has still no right in the matter.

Submission of Mr. Hussain therefore cannot stand.

Under these circumstances, the application filed by the State is allowed subject to payment of Rs. 5000/- as costs which shall be deposited in

the Advocates Welfare Fund. The State is given two month's time to pay the requisite Court-fee under rules, failing which the Appeal shall stand

dismissed without reference to the Bench. On payment of the requisite Court-fee, the Registry shall process the case in accordance with the rules.

C.M.P 359/2004 disposed of accordingly.