Patna High Court
Thakur Bhagwan Sita Ramji vs Moti Prasad And Ors. on 19 February, 1973
Equivalent citations: AIR1973PAT439, AIR 1973 PATNA 439
ORDER G.N. Prasad, J.
1. The petitioner was the plaintiff-respondent in S. A. 472 of 1966 which had been filed by defendants 1 to 9 of Title Suit No. 193 of 1961, which the petitioner had instituted in the court of the Munsif at Bihar Sharif. Three other defendants of the suit, namely defendants 10 to 12 were joined as pro forma respondents in the second appeal aforesaid.
2. The suit which was one for redemption and partition was decreed by trial court in part. Against the decision rejecting a part of the 'petitioner's claim in the suit, he had preferred a title appeal in the lower appellate Court. In that title appeal, the defendants had filed a cross-objection. Ultimately the lower appellate Court dismissed the cross-objection filed by the defendants and decreed the plaintiff-petitioner's claim in full. Being aggrieved by the decision of the lower appellate Court, defendants 1 to 9 preferred S. A. 472 of 1966.
3. In the second appeal the Stamp Reporter reported that there was a deficit of court-fee payable by the defendants-appellants upon the memorandum of appeal in this Court to the tune of Rs. 41.25. The Stamp Reporter further reported that an amount of Rs. 36.25 was payable by the plaintiff-respondent, namely, the present petitioner as deficit Court-fee upon his memorandum of appeal in the lower appellate Court. Neither the appellants (defendants 1 to 9) nor Respondent no. 1 (the plaintiff) having paid the deficit court-fee demanded from them in accordance with the Stamp Reporter, the matter was placed before the Bench on the 6th July. 1967. On that day, Misra. J. (as he then was) granted one month's time to the defendants-appellants to file deficit court-fee payable by them with a direction that upon their failure to pay the deficit court-fee on the memorandum of appeal here as also on their memorandum of cross-objection in the lower appellate court, the memorandum of appeal would stand rejected without further reference to a Bench. On the same occasion, Misra, J, passed the following order:
"The same time is allowed to the plaintiff-respondent to file the deficit court-fee payable on his memorandum of appeal to the lower appellate Court, failing which that memorandum of appeal shall stand rejected without further reference to a Bench."
4. The appellants (defendants I to 9) made good the deficit of the court-fee that was payable by them within the time granted to them by Misra, J, The plaintiff-petitioner, however, did not comply with the order of his Lordship so that the deficit court-fee payable by the plaintiff-respondent on the memorandum of his appeal to the lower appellate Court remained unpaid. There-
fore, the matter was again placed before the Bench on the 24th October, 1967. On that date, U. N. Sinha. J. (as he then was) recorded the following order:--
"The memorandum of appeal which had been presented before the court of appeal below by the plaintiff stands rejected for non-compliance with the peremptory order passed by this court on the 6th July, 1967. The appeal by defendants 1 to 9 in this court has, therefore become infructuous. The memorandum of appeal presented before this court is therefore, rejected."
5. It is in this context of facts that the petitioner who. as already stated, was the plaintiff-respondent in the second appeal in question, filed the present application under Section 151 of the Code of Civil Procedure on the 26th February, 1969. The application was admitted by Misra, J., who had by then become the Chief Justice of this court, on the 9th March. 1970. The learned Judge having since retired, this application has under the orders of the Hon'ble Chief Justice been placed before me for hearing.
6. The prayer of the petitioner in this application is that the order of Misra, J. dated the 6th July, 1967,extracted above, should be vacated and consequential orders be passed with respect to S. A. 472 of 1966.
7. The principle upon which the present application should be decided is, in my opinion, the same which was laid down by their Lordships of the Supreme Court in Mohd. Munif Khan v. Mohd. Shahabuddin Khan, Civil Appeal Nos. 1115 and 1116 of 1967, decided on appeal from this Court on 22-8-1967 (SC). There it was held that in appeal by the defendant in a suit which has already been decreed by trial Court, the High Court has no jurisdiction to reject the plaint upon the failure of the plaintiff to pay additional court-fee demanded from him, because once the decree has been passed by the Court of first instance, it can be modified by the appellate Court only on the merits of the dispute or by consent of the parties. The High Court has no power to set aside the decree for default by plaintiff in carrying out its order relating to the payment of court-fee. It is true that the liability of the plaintiff to pay the appropriate court-fee is not wiped out. "The liability" said their Lordships "remained, but the plaint could not be rejected either by Court of first instance or by appellate Court after a decree was passed in favour of the appellants" (i. e. the plaintiffs). Their Lordships further pointed out that the procedure which may appropriately be adopted in such a case has been indicated by a Bench of the Bombay High Court in Alabux Nazaralli Bohori v. Abdullalli Khanbhai Bohori, AIR 1942 Bom 151. Although the case before their Lordships was with regard to the deficit court-fee payable by the plaintiff for the plaint in the trial Court, I am of the opinion that there can be no different principle for being applied in respect of the deficit court-fee payable by the plaintiff on his memorandum of appeal in the lower appellate Court.
8. The decision of their Lordships of the Supreme Court in Mohammad Munif Khan's case (Supra) was referred to by a Bench of this Court in Raj Kumar Madan Mohan Singh v. Rukmini Devi, 1971 BLJR 1029 but the numbers of the civil appeals were incorrectly mentioned as Civil Appeals 115 and 116 of 1967 instead of Nos. 1115 and 1116 of 1967. In the Bench decision of this Court, just referred to, it was held that the dismissal of the appeal, rather the rejection of the memorandum of appeal, for non-payment of the deficit court-fee for the Court below was without jurisdiction. It was also observed as follows:--
"It is settled law that the litigant deserved to be protected against the default committed or negligence shown by the Court or its officers in the discharge of their duties. It was held as far back as 1871 in the case of Rodger v. Competoir D'Escompte de Paris. (1871) 3 PC 465 that one of the first and highest duties of all Courts is to take care that the act of the Court does not cause injury to any of the suitors. This view has been approved by the Supreme Court of our country in Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832. In my opinion, therefore, it is a fit case where this Court should in exercise of its inherent jurisdiction recall the aforesaid orders in First Appeal No. 77 of 1952".
It will be observed that in the Bench. decision aforesaid, the prayer was for review of the order of dismissal of First Appeal No. 77 of 1952. But I am inclined to think that in such circumstances even the provisions of Section 151 of the Code can be resorted to because the Court has inherent power to rectify its own mistake when its attention is drawn thereto.
9. For the aforesaid reasons, I allow this application and recall the order of this Court whereby the memorandum of appeal filed by the petitioner in the lower appellate Court stood rejected on account of non-payment of the deficit court-fee payable by the petitioner thereon. As a consequence the subsequent order of this Court passed on the 24th October. 1967 must also be recalled.
10. The result is that S. A. 472 of 1966 is restored to its original file. After the appeal is restored, the petitioner will be called upon to make good the deficit court-fee which he should have paid on the memorandum of appeal in the lower appellate Court and upon his omission or failure to pay the same, the Court will proceed in accordance with the procedure indicated in the Bombay case to which reference has been made by their Lordships of the Supreme Court. This order, however, is subject to the condition that the petitioner pays a sum of Rs. 50/- to learned counsel for the Opposite Party on or before the 16th March 1973. If the amount of costs just mentioned is not paid within the aforesaid time, then the present application will stand dismissed without further reference to a Bench.
Petition allowed