Patna High Court
Abdul Satter And Anr. vs Mt. Hamidan on 27 October, 1949
Equivalent citations: AIR1950PAT239, AIR 1950 PATNA 239
JUDGMENT
1. When this second appeal came before us for hearing under Order 41, Rule 11, Civil P. C., we discovered that there was a deficit court-fee due from the appellant in respect of the Courts below. We, therefore, under the provisions of Section 12 (ii), Court-fees Act, read with Section 10 (ii), postponed the hearing and gave the appellant time to make up the deficit, with an order that the appeal would stand dismissed if he did not comply.
2. Subsequently, the appellant appeared before us and suggested that this order was not in accordance with the practice of the Court, and that, moreover, though he had accepted the stamp report with regard to the deficit so far as this Court was concerned and had paid it, he still wished to contest the stamp report with regard to the Courts below, which was a matter for the Bench, and not for the Taxing Officer.
3. Though, in the circumstances, not having appeared when the previous order was passed, the appellant was not entitled to any further hearing, we decided to give him an opportunity to support his contentions. His learned Advocate immediately conceded to day that he could not successfully challenge the stamp report and that the deficit reported was in fact due from the appellant. He nevertheless objected to paying the amount until after the appeal had been heard under Order 41, Rule 11, and said this was the usual practice.
4. Quite obviously, the only motive that can be behind this contention is that the appellant hopes that, in the event of the appeal being dismissed under Order 41, Rule 11, he will be able to evade paying the amount which, he admits, is due from him.
5. If there has been a practice of this Court to postpone making an order for realisation of such deficits until the final hearing of the appeal, it is, if we may say so, a very bad practice, and the sooner it is changed the better. We, in our own experience, have seen many cases where, having disposed of the appeal, the Court bas attempted in vain to realise deficit court-fees in respect of the lower Courts, but has failed to do so, with consequent loss to the revenue.
6. It is not only a question of adopting a better practice, but, so far as we can see, the order we have passed is more in accordance with the provisions of the Court fees Act, and is, moreover, supported by authority. Section 12 (ii), Court-fees Act, says that whenever a suit, in which there is a question of court-fees payable, comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of Section 10, paragraph (ii) are to be applied.
7. This casts a duty upon us to realise the deficit whenever a suit cornea before us in appeal in which a deficit is found to be due, and Section 10 (ii), which is to be applied, says "in such case the suit shall be stayed until the additional fee is paid". If the additional fee is not paid within such time as the Court may fix, the suit shall he dismissed. In reference to Section 12 (ii) we must here read "appeal" for "suit", and it is clear that the procedure contemplated is that as soon as the appeal comes before us, we should stay the hearing until the deficit is paid, and, if it is not paid within the time fixed, dismiss the appeal.
8. The word "admission" occurs nowhere in these provisions. Obviously, we are to take action as soon as the appeal comes before us, that is to say, after it has been formally registered under Order 41, Rule 9, Civil P. C.
9. It is obviously bad practice to hear the appeal under Order 41, Rule 11, in the first instance, and it is also not in accord with the provisions of Section 10 (ii), for the Court actually hears the appeal under Order 41, Rule 11. True, if notice is issued, it is not a final hearing, but it is a final hearing if the appeal comes to be dismissed under Order 41, Rule 11, and, after such dismissal, it has been held by this Court that the Court has no power to realise the deficit. This has been laid down by a Division Bench in Rajdeo Narain Singh v. Ramdil Singh, 5 P. L. J. 508 : (A. I. R. (7) 1920 Pat. 827), where their Lordships said :
"When an appeal has been dismissed by the High Court under Order 41, Rule 11, Civil P. C., 1908, the Court has no power to recover from the respondent, who was appellant in the Court below, a deficiency in the court-fee due on the memorandum of appeal filed by him in that Court."
10. We asked the appellant to cite any decisions in support of his contention that we were not entitled to realise the deficit until after the appeal had been "admitted" under Order 41, Rule 11. He cited the Full Bench decision in Hitendra Singh v. Rameshwar Singh, 6 P. L. J. 293 : (A. I. R. (8) 1921 Pat. 88 F. B.). That was a case where the question was whether a deficit court fee due in respect of the Court below should be realised before printing the paper book or at the time of final hearing, and the answer of the Full Bench was that the matter should be dealt with at the earliest possible moment after the deficit is discovered. But the appellant seeks to rely on a casual observation of Sir Dawson-Miller C. J., who said :
"I further think that in all cases where the question of recovering the deficit in the lower Court arises on appeal the appeal should first be admitted before the point is decided, so that no question may arise as to the Court's jurisdiction."
This point was not before the Fall Bench, and there is no endorsement by the other two Judges of the observation. We are further of the opinion that this observation was made with regard to the formal registration of the appeal under Order 41, Rule 9, which is referred to as "admission", and we do not think his Lordship had in mind the hearing of the appeal under Order 41, Rule 11. The word "admit" is expressly used in Order 41, Rule 9, it does not occur at all in Order 41, Rule 11.
11. Mr. Anwar Ahmed for the appellant has cited three other rulings, and three only. They are Sidheawari Prasad v. Ram Kunwar Rai, 12 Pat. 694 : (A. I. R. (20) 1933 Pat. 234), Bishwanath Singh v. Kishore Singh, A. I. R. (32) 1945 pat. 81 : (23 Pat. 749) and Baijnath Prasad v. Umeshwar Singh, A. I. R. (21) 1937 Pat. 550 : (16 Pat. 600 S. B.). It is unnecessary to deal with them because they are all completely irrelevant. On the other hand, the Stamp Reporter has referred us to a case directly in point, namely, Bidhu Bhusan v. Kala Chand, 106 I. C. 335 : (A. I. R. (14) 1927 Cal. 775). This was a Division Bench case of the Calcutta High Court, and that Bench held as follows : where a plaint as well as the memorandum of appeal filed by a plaintiff are found insufficiently stamped, the proper course to be followed by the Appellate Court is to direct that the appeal be registered on the appellant supplying the deficit court-fees as regards his memorandum of appeal, and after the appeal has been registered and before it has been dealt with under Order 41, Rule 11, Civil P. C., to place the case for orders under Section 12, Sub-section (ii), Court-fees Act as regards the deficit court-fees on the plaint in the lower Court.
12. As a further concession to the appellant, we now allow him three weeks to pay the deficit admittedly due, failing which this appeal will stand dismissed without further reference to a Bench. Under Section 10 (ii) the hearing under Order 41, Rule 11, is postponed until this matter has been settled, and, if the deficit be not paid within the time allowed, the appeal will not have to be beard under Order 41, Rule 11, at all as it will stand dismissed.