State of Orissa Vs. Rajanikanta Mohapatra - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - court is to be satisfied that there was sufficient cause for non-payment of the proper fee. if the amount was received on 28-8-1986, i fail to appreciate why it took a month to obtain the court-fee stamp.orders.c. mohapatra, j. 1. application under section 149 civil procedure code has been registered as a miscellaneous case which is being disposed of by this order. 2. court-fee of rs. 603/- is payable by the appellant-petitioner on the memorandum of appeal. without paying the same, application has been filed to extend the time by four months to pay the court-fee. the relevant portion of the petition reads as follows :-- '1. that today the appellant is filing the appeal without court-fee. 2. that the court-fee payable on the memorandum of appeal is rs. 603.00 which is to be challaned from the treasury. 3. that since the amount required for purchasing court-fee was not received from the concerned department in time it has not been possible to file the necessary challan in the treasury for purchasing court-fee. 4. that it is necessary in the interest of justice that four months' time be granted to the appellant to file the requisite court-fee in this case. prayer. the appellant, therefore, prays that your lordships would be graciously pleased to extend the time for payment of the requisite court-fee by four months and pass such other orders as your lordships think fit and proper in the facts and circumstances of the case. xx xx xx xx xx 3. under section 4 of the court-fees act, 1860 the memorandum of appeal is prohibited to be filed or received where the proper fee has not been paid. the language of the section 4 in the taxing statute is mandatory. the relevant portion reads as follows :-- '4. fees on documents filed, etc., in high courts in their extraordinary jurisdiction. no document of any of the kinds specified in the first or second schedule to this act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said high court in any case coming before such court in the exercise of its extraordinary original civil jurisdiction, or xx xx xx xx xx in their appellate jurisdiction - xx xx xx xx or in the exercise of its jurisdiction as regards appeals from the courts subject to its superintendence; xxx xxx xxx 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 document.' 4. the provision being in a taxing statute is to be interpreted strictly. equity has no place in taxing statutes. to mitigate the rigour, section 149 c.p.c. has been enacted which has the effect of being a proviso to section 4. therefore, both the provisions are to be read harmoniously. see air 1971 sc 1374 mannan lal v. mist. chhotka bibi. 5. the language of section 149 c.p.c. makes it clear that permission by the court to pay the proper fee later is discretionary. on mere asking for the same by the defaulting litigant, court would not allow to pay the same. court is to be satisfied that there was sufficient cause for non-payment of the proper fee. section 149 c.p.c. reads as follows : -- '149. 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 been paid, the court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the wholeor 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.' 6. the language of the section 149 c.p.c. makes it clear that wide discretion has been vested in the court to allow late payment of proper fee. however, wider the discretion, greater is the restraint. therefore, while considering to exercise the discretion, court is to examine the conduct of the litigant. in air 1923 pat 56 (1) deonath sahai v. radha kanta prasad while construing section 6 of the court-fees act which is similar in language of section 4 it was held that the legislature did not intend that time should be given as a matter of course even where the plaintiff had deliberately and without any excuse paid an insufficient court-fee. in air 1929 pat 731 deonandan misra v. ganga prasad, it was held that the court may not exercise its discretion in favour of an appellant when the question of the amount of court-fee is not in doubt or when no honest attempt appears to have been made to comply with the law. in air 1968 bom 309, basawwa v. limbawwa, it has been observed that discretion is not to be exercised in favour of a party who has been negligent. the allahabad high court in the full bench decision reported in air 1951 all 64 section wajid ali v. mt. isar bano held that time may be extended where inability to pay the court-fee is due to circumstances beyond the control of the litigant. cumulative effect of the aforesaid decisions is that mere inability to pay the court-fee at the time of presenting the memorandum of appeal is not a sufficient ground for indulgence by the court to exercise the discretion under section 149 c.p.c. in favour of the litigant. 7. therefore, it is to be examined if there was sufficient cause for the appellant not to pay the proper fee under the court-fees act at the time of presentation of the memorandum of appeal. 8. the impugned judgment was delivered on 23-12-1985. certified copy of the samewas applied for on 15-1-1986 along with the requisite stamps and folios. it is astonishing that to prepare the hand written certified copy of eighteen pages, the trial court took about six and half months. it was made ready on 30-7-1986. taking into consideration the period available under section 12 of the limitation act, the appeal could have been preferred in the 1st week of october, 1986. thus, the appeal was preferred much before the expiry of the period of limitation. one of the grounds to exercise the discretion is that the court-fee (stamp) was to be obtained from the treasury. the appellant could have first obtained the court-fee stamp and then presented the memorandum of appeal. where the period of limitation was going to expire, the ground may be sufficient to allow to file the appeal without court-fee. where, however, there was sufficient time, there was absolutely no justification for filing the appeal without the proper fee being paid. 9. the next ground for the inability to pay the court-fee is that the money had not been received from the department. vagueness of the statement is apparent on the face of the statement. state of orissa is the appellant. it has no living mind. it is to function through individuals in accordance with the rules of business would not (sic) indicate any provision where an appeal can be filed in breach of the mandatory provision under section 4 of the court-fees act even if the money has not been received from the department. the government pleader authorised to act on behalf of the state government is not bound to prefer the appeal without proper fee being paid much before the expiry of the period of limitation without the money being received. there was also no justification for the department to instruct the government pleader to prefer the appeal without payment of proper fee. legislature has made no exception in respect of state government so far as payment of court-fee. this is a clear case where the deficiency in the proper functioning of individuals invites blame to the state government which has no living mind. therefore, persons in charge of administration are to take care of the individuals through whom the state government is required to function so that the functions of the state government donot become blameworthy. even if it would have been accepted as a sufficient cause for preferring the appeal without court-fee, no explanation has been given as to why the department while sending the, documents for preferring an appeal has not paid the money for the purpose of court-fee. although, the amount of court-fee would ultimately go to the state exchequer, state government is bound by the law of the land. by filing of an application under section 149 c.p.c. with vague assertions, for extension of time to pay a paltry sum of rs. 603/-, it should not have been expected that the discretion would be exercised in its favour. 10. to examine the bona fides of the departmental officers, i called upon the learned counsel for the appellant to disclose the date when the amount was received to get the court-fee stamp from the treasury. he disclosed that the amount was received on 28-8-1986 and at that stage submitted that the court-fee has already been paid on 29-9-1986. if this fact would have been brought to my notice on 23-10-1986, when the matter was listed on the basis of the office note dated 30-8-1986, i could have disposed of the application that day. it seems, no record has been maintained in this case by the appellant to bring the fact to the notice of the court considering the application under section 149 c.p.c. court's registry is also not free from blame. before listing a matter indicating the deficiency of a litigant, up to date position should have been examined. this much is enough to indicate that lack of co-ordination has resulted in this unfortunate situation. if the amount was received on 28-8-1986, i fail to appreciate why it took a month to obtain the court-fee stamp. 11. the teamed additional government advocate submitted that the proper fee having already been paid since 29-9-1986, the same should be accepted when the same had been filed within the period of limitation for preferring the appeal and the defects if any, ought to be ignored. there is force in his contention. when the appeal could have been filed on 29-9-1986, serious view should not be taken of the lapses. in that view, iaccept the submission and extend the time till 29-9-1986 for payment of court-fee specially when the application under section 149 c.p.c. remained pending till date. this, however, does not mean that my discussion in earlier paragraphs were not necessary. when the application under section 149 c.p.c. was filed and was the subject matter for consideration, judicial approach necessitated the consideration of various facts to draw legitimate inferences for exercise of the discretion. 12. it would not, however, be futile exercise to indicate the various defects found out in this case. they are : -- 1. it took 6 1/2 months for furnishing a certified copy by the trial court. 2. the petition under section 149 c.p.c. was filed without application of mind. 3. even after receipt of the money it took one month to obtain the court-fee stamp. 4. about one month after the court-fee stamp was filed, the matter was listed without any indication in the order-sheet that the court-fee amount has been filed though late. the officers in charge of administration in the various wings ought to take note of the defects concerning them to deal with the delinquency if any at their end. in order to preserve the prevalence of the rule of law and to avoid future inferences of lack of vigilance, the authorities concerned should have a thorough probe into the matter. although this single instance has come to light, there may be many such lapses for which permanent remedy is to be chalked out. 13. in the result, for the reasons indicated above, the court-fee stamp having already been paid, the time is extended till 29-9-1986 when the same was filed and the misc. case is allowed. copies of this order be sent to the revenue department, law department of the state government and the district judge, sambalpur for the needful.

Judgment:
ORDER

S.C. Mohapatra, J.

1. Application under Section 149 Civil Procedure Code has been registered as a Miscellaneous case which is being disposed of by this order.

2. Court-fee of Rs. 603/- is payable by the appellant-petitioner on the memorandum of appeal. Without paying the same, application has been filed to extend the time by four months to pay the court-fee. The relevant portion of the petition reads as follows :--

'1. That today the appellant is filing the appeal without court-fee.

2. That the court-fee payable on the memorandum of appeal is Rs. 603.00 which is to be challaned from the Treasury.

3. That since the amount required for purchasing court-fee was not received from the concerned department in time it has not been possible to file the necessary challan in the Treasury for purchasing court-fee.

4. That it is necessary in the interest of justice that four months' time be granted to the appellant to file the requisite court-fee in this case.

Prayer.

The appellant, therefore, prays that your Lordships would be graciously pleased to extend the time for payment of the requisite court-fee by four months and pass such other orders as your Lordships think fit and proper in the facts and circumstances of the case. XX XX XX XX XX

3. Under Section 4 of the Court-fees Act, 1860 the memorandum of appeal is prohibited to be filed or received where the proper fee has not been paid. The language of the Section 4 in the taxing statute is mandatory. The relevant portion reads as follows :--

'4. Fees on documents filed, etc., in High Courts in their extraordinary jurisdiction. No document of any of the kinds specified in the first or second schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High Court in any case coming before such court in the exercise of its extraordinary original civil jurisdiction,

or xx xx xx xx xx In their appellate jurisdiction -

xx xx xx xx or in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence;

XXX XXX XXX 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 document.'

4. The provision being in a taxing statute is to be interpreted strictly. Equity has no place in taxing statutes. To mitigate the rigour, Section 149 C.P.C. has been enacted which has the effect of being a proviso to Section 4. Therefore, both the provisions are to be read harmoniously. See AIR 1971 SC 1374 Mannan Lal v. Mist. Chhotka Bibi.

5. The language of Section 149 C.P.C. makes it clear that permission by the court to pay the proper fee later is discretionary. On mere asking for the same by the defaulting litigant, Court would not allow to pay the same. Court is to be satisfied that there was sufficient cause for non-payment of the proper fee. Section 149 C.P.C. reads as follows : --

'149. 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 been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the wholeor 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.'

6. The language of the Section 149 C.P.C. makes it clear that wide discretion has been vested in the Court to allow late payment of proper fee. However, wider the discretion, greater is the restraint. Therefore, while considering to exercise the discretion, court is to examine the conduct of the litigant.

In AIR 1923 Pat 56 (1) Deonath Sahai v. Radha Kanta Prasad while construing Section 6 of the Court-fees Act which is similar in language of Section 4 it was held that the Legislature did not intend that time should be given as a matter of course even where the plaintiff had deliberately and without any excuse paid an insufficient court-fee.

In AIR 1929 Pat 731 Deonandan Misra v. Ganga Prasad, it was held that the Court may not exercise its discretion in favour of an appellant when the question of the amount of court-fee is not in doubt or when no honest attempt appears to have been made to comply with the law.

In AIR 1968 Bom 309, Basawwa v. Limbawwa, it has been observed that discretion is not to be exercised in favour of a party who has been negligent.

The Allahabad High Court in the Full Bench decision reported in AIR 1951 All 64 Section Wajid Ali v. Mt. Isar Bano held that time may be extended where inability to pay the court-fee is due to circumstances beyond the control of the litigant.

Cumulative effect of the aforesaid decisions is that mere inability to pay the court-fee at the time of presenting the memorandum of appeal is not a sufficient ground for indulgence by the Court to exercise the discretion under Section 149 C.P.C. in favour of the litigant.

7. Therefore, it is to be examined if there was sufficient cause for the appellant not to pay the proper fee under the Court-fees Act at the time of presentation of the memorandum of appeal.

8. The impugned judgment was delivered on 23-12-1985. Certified copy of the samewas applied for on 15-1-1986 along with the requisite stamps and folios. It is astonishing that to prepare the hand written certified copy of eighteen pages, the trial court took about six and half months. It was made ready on 30-7-1986. Taking into consideration the period available under Section 12 of the Limitation Act, the appeal could have been preferred in the 1st week of October, 1986. Thus, the appeal was preferred much before the expiry of the period of limitation. One of the grounds to exercise the discretion is that the court-fee (stamp) was to be obtained from the treasury. The appellant could have first obtained the court-fee stamp and then presented the memorandum of appeal. Where the period of limitation was going to expire, the ground may be sufficient to allow to file the appeal without court-fee. Where, however, there was sufficient time, there was absolutely no justification for filing the appeal without the proper fee being paid.

9. The next ground for the inability to pay the court-fee is that the money had not been received from the department. Vagueness of the statement is apparent on the face of the statement. State of Orissa is the appellant. It has no living mind. It is to function through individuals in accordance with the Rules of business would not (Sic) indicate any provision where an appeal can be filed in breach of the mandatory provision under Section 4 of the Court-fees Act even if the money has not been received from the department. The Government Pleader authorised to act on behalf of the State Government is not bound to prefer the appeal without proper fee being paid much before the expiry of the period of limitation without the money being received. There was also no justification for the department to instruct the Government Pleader to prefer the appeal without payment of proper fee. Legislature has made no exception in respect of State Government so far as payment of court-fee. This is a clear case where the deficiency in the proper functioning of individuals invites blame to the State Government which has no living mind. Therefore, persons in charge of administration are to take care of the individuals through whom the State Government is required to function so that the functions of the State Government donot become blameworthy. Even if it would have been accepted as a sufficient cause for preferring the appeal without court-fee, no explanation has been given as to why the department while sending the, documents for preferring an appeal has not paid the money for the purpose of court-fee. Although, the amount of court-fee would ultimately go to the State Exchequer, State Government is bound by the law of the land. By filing of an application under Section 149 C.P.C. with vague assertions, for extension of time to pay a paltry sum of Rs. 603/-, it should not have been expected that the discretion would be exercised in its favour.

10. To examine the bona fides of the departmental officers, I called upon the learned counsel for the appellant to disclose the date when the amount was received to get the court-fee stamp from the treasury. He disclosed that the amount was received on 28-8-1986 and at that stage submitted that the court-fee has already been paid on 29-9-1986. If this fact would have been brought to my notice on 23-10-1986, when the matter was listed on the basis of the office note dated 30-8-1986, I could have disposed of the application that day. It seems, no record has been maintained in this case by the appellant to bring the fact to the notice of the court considering the application under Section 149 C.P.C. Court's registry is also not free from blame. Before listing a matter indicating the deficiency of a litigant, up to date position should have been examined. This much is enough to indicate that lack of co-ordination has resulted in this unfortunate situation. If the amount was received on 28-8-1986, I fail to appreciate why it took a month to obtain the court-fee stamp.

11. The teamed Additional Government Advocate submitted that the proper fee having already been paid since 29-9-1986, the same should be accepted when the same had been filed within the period of limitation for preferring the appeal and the defects if any, ought to be ignored. There is force in his contention. When the appeal could have been filed on 29-9-1986, serious view should not be taken of the lapses. In that view, Iaccept the submission and extend the time till 29-9-1986 for payment of court-fee specially when the application under Section 149 C.P.C. remained pending till date. This, however, does not mean that my discussion in earlier paragraphs were not necessary. When the application under Section 149 C.P.C. was filed and was the subject matter for consideration, judicial approach necessitated the consideration of various facts to draw legitimate inferences for exercise of the discretion.

12. It would not, however, be futile exercise to indicate the various defects found out in this case. They are : --

1. It took 6 1/2 months for furnishing a certified copy by the trial court.

2. The petition under Section 149 C.P.C. was filed without application of mind.

3. Even after receipt of the money it took one month to obtain the court-fee stamp.

4. About one month after the court-fee stamp was filed, the matter was listed without any indication in the order-sheet that the court-fee amount has been filed though late. The officers in charge of administration in the various wings ought to take note of the defects concerning them to deal with the delinquency if any at their end. In order to preserve the prevalence of the rule of law and to avoid future inferences of lack of vigilance, the authorities concerned should have a thorough probe into the matter. Although this single instance has come to light, there may be many such lapses for which permanent remedy is to be chalked out.

13. In the result, for the reasons indicated above, the court-fee stamp having already been paid, the time is extended till 29-9-1986 when the same was filed and the misc. case is allowed. Copies of this order be sent to the Revenue Department, Law Department of the State Government and the District Judge, Sambalpur for the needful.