Judgment:
A.H. Saikia, J.
1. Heard Mr. S.K. Borkotoki, learned Counsel for the appellant. Also heard learned Govt. counsel for the respondents.
2. 'Whether the learned court below fell into serious error in depriving the appellant for realising the money from the respondent on the ground of court fee without invoking Section 149 of the CPC' is the substantial question of law which in essence has necessitated this second appeal.
3. The appellate court by its order dated 27.7.1999 passed in TA No. 1/97 which is under challenge in this second appeal though affirmed the finding of the trial court holding that the appellant was the lawful owner of 39 Nos. of logs which was the subject matter of the instant Title Suit, being the products from the Patta land of the appellant, ruled that the appellant was debarred from realizing any money for those seized logs as no court fee was paid for any consequential relief for entitling the appellant to get a mandatory injunction for recovery of such money.
4. The brief facts as emerged from the pleadings of the parties are that the appellant was the recorded pattadar and in physical possession of a plot of land covered by Dag No. 195 and 206 under Periodic Patta No. 5 situated at Dighatipathar gaon under Buridihing Mouza in the District of Tinsukia, Assam wherein he had some growing trees of Hollong quality. For the purpose of selling some quantity of timber tree, 39 Nos. of such Hollong trees were cut down and converted into logs. Those logs, thereafter, compounded by the official respondents and accordingly a compound order dated 26.3.1990 was issued by the respondent No. 4. The Divisional Forest Officer, Doom Doom Division, Doom Dooma. On receipt of such compounding order, the appellant deposited a sum of Rs. 55,769, being the amount of monopoly fee. Sales Tax and compensation, etc. vide money receipt dated 3.4.1990. in the Range cash account of Govt. of Assam. After depositing such amount, the appellant started to remove the logs. But after carrying 18 Nos. of logs out of those 39 Nos. logs under office order, the appellant was asked by the official respondents to stop further removal of the logs on the ground that the land from where such trees were cut down fell under Doom Dooma Reserve Forest only and the said land did not belong to the Patta land of the appellant. Even the official respondent, particularly, the respondent No. 5, the Forest Range Officer, Kakapathar Range, Kakapathar, confiscated the remaining 21 Nos. of logs without giving any chance or opportunity of being heard or to file any objection by the appellant and disposed of through tender system by framing the same as unclaimed seized logs and also realised a sum of Rs. 17,877.15 paise from the lot holder with whom the lot was settled. Since the appellant was deprived of his 21 Nos. of Hollong logs by way of such confiscation and disposal without any just cause and reason, the appellant, having suffered a huge loss and injury, approached the official respondents particularly, Respondents Nos. 4 and 5 on various 'occasions for settlement of the matter either by way of refund from the balance amount in respect of 21 Nos. of Hollong logs out of Rs. 55.769 so paid by the appellant for the total 39 Nos. of logs alongwith the amount of Rs. 17,877.15 paise, the amount realised by the official respondents by tender system. But the appellant's request had remained unattended to. As a result, the appellant was compelled to file the present suit for declaration to the effect that the confiscation of the 21 Nos. of Hollong logs and subsequent disposal of the same by way of tender system was illegal and against the procedure of law and also for refund of the balance amount of 21 Nos. of Hollong logs so deposited by way of monopoly fee, Sates Tax and compensation, etc. for the entire 39 Nos. of Hollong logs and also for recovery of Rs. 17,877.15 Paise. being the value of 21 Nos. of Hollong logs so realised by the official respondents through tender system with interest up to date or to allot another 21 Nos. of Hollong logs of the same size and girth from their own source of arrangement by way of mandatory injunction.
5. The suit was contested by the respondents by filing written statement stating, inter alia, that the suit was not properly valued and proper court fee was not paid. On consideration of the pleadings of the parties, the trial court framed as many as six issued as under:
(i) Whether the suit is maintainable?
(ii) Whether Sri Kunja Moran is the Attorney of the plaintiff?
(iii) Whether 39 Nos. of Hollong trees were cut down from the land of the plaintiff?
(iv) Whether the actions of the defendants in confiscation of 21 Nos. of Hollong logs and subsequently disposing of the same is against the procedure of Law as well as against the Natural justice and equity?
(v) Whether the plaintiff is entitled to a decree, as prayed for?
(vi) To what other relief, the Parties are entitled to?
6. The appellant examined three witnesses as plaintiff's witness when no witness was examined by the respondents. After hearing learned Counsel for the parties and on consideration of the evidence on record, the learned Asstt. District judge, Tinsukia by his Judgment dated 13.11.1996 and decree dated 15.11.1996 passed in Title Suit No. 39/94 decreed the suit of the appellant partly ordering for recovery of balance amount after deducting the amount of 18 Nos. of Hollong logs from the total sum of Rs. 55,769 so deposited by the appellant for 39 Nos. of Hollong logs.
7. Being aggrieved by the said judgment and decree above mentioned, the official respondents preferred an appeal being TA No. 1/97 before the learned District Judge, Tinsukia, who by his judgment and decree dated 27.7.1999 confirming that 39 Nos. of logs mentioned above including the seized 21 logs were the products of the patta land of the appellant held that the appellant, (respondent in the said appeal) was debarred from realising any money from the official respondents as no court fee was paid for granting any mandatory injunction as regards any recovery of such amount.
8. It has been forcefully argued on behalf of the appellant that the learned appellate court in spite of holding that mandatory injunction could not be granted for recovery of money in absence of payment of the deficit court fee, ought to have invoked Section 149 of the CPC and allowed the appellant to recover the amount in question, the entitlement of which was confirmed by both the courts below. On the other hand, the official respondents through their Govt. counsel, supporting the impugned judgment, have contended that since no issue was framed as regards the deposit of proper court fee. Section 149 of the CPC has no applicability and as such the learned appellate court rightly did not invoke the provision of Section 149 of the CPC.
9. It would be proper and necessary to read the provision of Section 149 CPC and the same may be quoted as under:
149. Power to make up deficiency of court-fees - Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not bean paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment 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.
10. A bare reading of the above provision clearly goes to show that the court whether trial court or appellate court in its discretion, at any stage, allow the person, by whom such court fee is payable, to pay the whole or part, as the case may be, of such court-fee. The power given under such Section 149 CPC being the discretionary in nature, the appellate court has the power to grant opportunity to make up any deficient court fee but this discretion can only be exercised when the court is satisfied that sufficient ground exists for full court fee not being paid in the first instance. In the instance case, when both the courts below were in full agreement that the appellant was the absolute owner of the logs in question being the product of his patta land, the appellant ought not to have been deprived of the realisation of money, as decreed by the court, for non payment of the court fee. When the appellate court found that the mandatory injunction could not be granted for recovery of money as no court fee was paid for in the consequential relief, the said court ought to have invoked the provision of Section 149 and allowed to pay the deficient court-fee. Though the power vested upon the Court by Section 149, being discretionary one, such discretion normally has to be exercised in favour of the litigant save and except in case of any apparent mala fide for not paying such court fee by giving the reason related to such mala fide or for any other reasons which manifestly do not allow for exercise of such discretionary power. Under Section 149 C.P.C., the court has ample power to allow the person by whom such fee is payable to pay such Court fees at any stage. In the instant case, it appears that no issue was framed as regards the deposit of proper court fee by the trial court and the trial court, after delving upon the existing issues so framed by it, decreed the suit for recovery of balance amount so claimed by the appellant in his suit but the appellate court while confirming the said finding of the trial court, deprived the appellant of his such entitlement for recovery of the amount for non payment of required court fee for mandatory injunction. In given circumstances, the appellant ought to have been given the opportunity to pay the deficient court fee.
11. That being so, this Court is of the view that it is a fit case where the appellate Court ought to have invoked the provision of Section 149 CPC and accordingly the impugned order to the extent of debarring the appellant from recovery any money from the official respondents is hereby quashed and set aside and the appellant shall be entitled to realise the money as decreed on payment of the deficient Court fee. Consequently, the case is remanded back to the appellate court with a direction to allow the appellant to make up the deficient court fee so as to enable him to recover the amount decreed by the courts below within a period of 2 (two) months from the date of receipt of this order.
12. Send down the records of the case immediately.
13. In the result, the appeal stands allowed. No costs.