# MANNAN LAL v. MST. CHHOTAKA BIBI

- **Citation:** [1971] 1 S.C.R. 253
- **Court:** Supreme Court of India
- **Decided:** 1970-04-10
- **Case number:** Special Appeal No. 1880 of 1962
- **Bench:** J. M. Shelat, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mannan-lal-v-mst-chhotaka-bibi-5008
- **Pages:** 13

## Headnote

253
The U.P. High Court (Aboli/ion of Leters Patent Appeals) Act. 1962
(U.P. Act 14 of 1962). s. 3-Specia/ Appeal against ;udgment of Single
Judge of High Court presenned with deficient court-fees before coming into
force U.P. Act 14 of 1962-Deficiency made up under order of Court
after canting into force of Act-Appeal whether to be treated as pending
on day in11nt!diately preceding co·ming into force of Act within 1neaning of
s. 3(1)-Court Fees Act, S. 4 and Code of Civil Procedure. s. 149 should
be relld hannonious/y.
The U.P. High Court (Abolition of Letters Patent Appeals) Act came
into force on November 13 1962.
Section 3(1) of the Act provided that
no appeal arising from a suit or a proceeding instituted or commenced
whether prior or subsequent to the enforcement of the Act, shall lie to
the High Court from a judgment and order of one Judge of the J;iiAh
Court, made. in exercise· of appellate iurisdiction in respect o.f a dec.:ree or
order made by a court subject to the superintendence of the High· Court,
anything to the contrary contained in cl. 10 of the Letters Patent of Her
Majesty dated 17th March 1866 read with cl. 17 of the U.P. High Court
Amalgamation Order of 1~48. or in.:any law, notwithstanding.
In subs. (2) of the section an exception was made in the case of appeals pending
before the High Court on the date immediately preceding the date of enforcement of the Act. The memorandum of appeal in Special Appeal No.
1880 of 1962 was presented in the High Court of Allahabad on November 9, 1962. The High Court directed the payment of additional court
fees and on that being done that memorandum was accepted and re~is
tered in January 1963. Eventually however the High Court held that the
appeal was not saved by s. 3(2) of U.P. Act of 1962, since in view M
s. 4 of the Court Fees Act the memorandum of appeal had no effect
before the making good of the deficiency in. court fees.
In appeal
by
certificate. to this Court, the question for decision was whether there was
an appeal pending before the High Court on Novmber 12, 1962 i.e. the
date immediately preceding the date of the enforcement of Act 14 of 1962.
HELD : Jn considering the question as to the maintain.ability of an
appeal when the court fee paid was insufficioot to start with but the dofl·
ciency was made ~ood later on, the provisions of the. Court Fees Act and
the Code of Civil Procedure have' to be read together to form a harmonious
whole and no effort should be made to give precedence to provisions in
one over those of the other unless the express words of a statute clearly
override those of the other. In the present context this could only be
done by readings s. 149 of the Code of Civil Procedure as a proviso to s. 4
of the Court Fees Act by allowing the deficiency to be made ~ood within
the period of time fixed by it. [261 .F-Hl
Although there is no definition of the word "appeal" ir. the Code of
Civil Procedure, it can be instituted by filing a memorandum of appeal as
provided in 0. 41, r. 1 of the Code. The filing of a memorandum of
appeal therefore bring an appeal into existence; if the memorandum is
deficient in court-fee. it may be. rejected and if rejected, the appeal comes
to an end. But if it is not rejected and time is given to the appellant
254
SUPREME COURT REPORTS
[ 1971) l S.C.R,
to make up the deficiency and this opportunity is availed of s. 149 of
the Code which expressly provides that the document is to have validity
with retrospective effoct as if the deficiency had been. made ~uod in the
first instance comes into play.
By reason of the dccmin.g provision in
s. 149 the memorandum of appeal is to have full force and effe·ct and the
appeal has to be treated as one pending from the date when it was before
the Stamp Reporter and the deficiency noted therein. [264 H; 265 D-H]
Applying the above prin.ciple the bar of s. 3 (I) of U.P. Act I 4 of
1962 would not operate in the instant case since the appeal in question
must be held to have been 'penc0

## Text

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MANNAN LAL
v.
MST. CHHOTAKA BIBI
April 10, 1970
[J. M. SHELAT AND G. K. MITTER, JJ.]
253
The U.P. High Court (Aboli/ion of Leters Patent Appeals) Act. 1962
(U.P. Act 14 of 1962). s. 3-Specia/ Appeal against ;udgment of Single
Judge of High Court presenned with deficient court-fees before coming into
force U.P. Act 14 of 1962-Deficiency made up under order of Court
after canting into force of Act-Appeal whether to be treated as pending
on day in11nt!diately preceding co·ming into force of Act within 1neaning of
s. 3(1)-Court Fees Act, S. 4 and Code of Civil Procedure. s. 149 should
be relld hannonious/y.
The U.P. High Court (Abolition of Letters Patent Appeals) Act came
into force on November 13 1962.
Section 3(1) of the Act provided that
no appeal arising from a suit or a proceeding instituted or commenced
whether prior or subsequent to the enforcement of the Act, shall lie to
the High Court from a judgment and order of one Judge of the J;iiAh
Court, made. in exercise· of appellate iurisdiction in respect o.f a dec.:ree or
order made by a court subject to the superintendence of the High· Court,
anything to the contrary contained in cl. 10 of the Letters Patent of Her
Majesty dated 17th March 1866 read with cl. 17 of the U.P. High Court
Amalgamation Order of 1~48. or in.:any law, notwithstanding.
In subs. (2) of the section an exception was made in the case of appeals pending
before the High Court on the date immediately preceding the date of enforcement of the Act. The memorandum of appeal in Special Appeal No.
1880 of 1962 was presented in the High Court of Allahabad on November 9, 1962. The High Court directed the payment of additional court
fees and on that being done that memorandum was accepted and re~is
tered in January 1963. Eventually however the High Court held that the
appeal was not saved by s. 3(2) of U.P. Act of 1962, since in view M
s. 4 of the Court Fees Act the memorandum of appeal had no effect
before the making good of the deficiency in. court fees.
In appeal
by
certificate. to this Court, the question for decision was whether there was
an appeal pending before the High Court on Novmber 12, 1962 i.e. the
date immediately preceding the date of the enforcement of Act 14 of 1962.
HELD : Jn considering the question as to the maintain.ability of an
appeal when the court fee paid was insufficioot to start with but the dofl·
ciency was made ~ood later on, the provisions of the. Court Fees Act and
the Code of Civil Procedure have' to be read together to form a harmonious
whole and no effort should be made to give precedence to provisions in
one over those of the other unless the express words of a statute clearly
override those of the other. In the present context this could only be
done by readings s. 149 of the Code of Civil Procedure as a proviso to s. 4
of the Court Fees Act by allowing the deficiency to be made ~ood within
the period of time fixed by it. [261 .F-Hl
Although there is no definition of the word "appeal" ir. the Code of
Civil Procedure, it can be instituted by filing a memorandum of appeal as
provided in 0. 41, r. 1 of the Code. The filing of a memorandum of
appeal therefore bring an appeal into existence; if the memorandum is
deficient in court-fee. it may be. rejected and if rejected, the appeal comes
to an end. But if it is not rejected and time is given to the appellant
254
SUPREME COURT REPORTS
[ 1971) l S.C.R,
to make up the deficiency and this opportunity is availed of s. 149 of
the Code which expressly provides that the document is to have validity
with retrospective effoct as if the deficiency had been. made ~uod in the
first instance comes into play.
By reason of the dccmin.g provision in
s. 149 the memorandum of appeal is to have full force and effe·ct and the
appeal has to be treated as one pending from the date when it was before
the Stamp Reporter and the deficiency noted therein. [264 H; 265 D-H]
Applying the above prin.ciple the bar of s. 3 (I) of U.P. Act I 4 of
1962 would not operate in the instant case since the appeal in question
must be held to have been 'penc0ing' within the meaning ofs. 3(2). [265 DJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 544 of
1967.
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Appeal from the judgment and decree dated August 18, 1964
C
of the Allahabad High Court i;n_Special Appeal No. 880 of 1962.
Gobind Das and G. S. Chatterjee, for the appellant.
C. B. Agarwala, Yogeshwar Prasad and S. K. Bagga, for respond_ent No. L
The Judgment of the Court was delivered by--
Mitter, J.
In this appeal by certificate granted by th('. Allaha-
·bad High Court the only question is, whether Special Appeal No.
880 of 1962 of that . .eourt was maintainable in view of the provisions of the U.P. Act XIV of 1962 abolishing such appeals.
The said Act styled the U.P. High Court (Abolition of Letters Patent Appeals) Act came into force on 13th November, 1962.
Section 3 of the Act provided as follows :-
"(!) No appeal, arising from a suit or proceeding
instituted or commenced, whether prior or subsequent
to the enforcement of this Act, shall lie to the High
Court from a judgment and order of one Judge of the
the High Court, made in exercise of appellate jurisdiction, in respect of a decree or order made by a ·court
subject to the superintendence of the High Court, anything to the contrary contained in clause ten of the Letters Patent of Her Majesty, dated the 17th March 1866
read with Clause 17 of the U.P. High Courts' (Amalgamation) Order, l 948, or in any law notwithstanding.
(2) Notwithstanding anything contained in sub-section (l) all appeals pending before the High Court on
the date immediately preceding the date of enforcement
of this Act shall continue to iie and be heard and disposed of as heretobefore, as if this Act had not been
brought into force."
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MANNAN LAL v. CHHOTAKA BIBI (Mitter, J.)
255
A
The memorandum of appeal in Special Appeal No. 880 of
1962 was presented in the High Court on 9th November, 1962.
There was some doubt as to whether the court-fee paid in respect
of the memorandum at the date of its presentment was sufficient.
Ultimately however a Bench of the High Court directed the payment of additional court-fee and on that being done the memoB
randum was accepted and registered in January 1963.
The question before us is, whether there was an appeal pending before the
High Court on 12th November 1962 i.e. the date immediately preceding the date of enforcement of the above U.P. Act.
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It will not be out of place to set forth a short history of the
litigation culminating in the filing of the said memorandum of
appeal. On 2nd April 1872 a property was mortgaged with possession to one Beni Madho by two mortgagers, namely, Girdharilal and Smt. Sunder Bibi for a sum of Rs. 3,684.
The first respondent herein claiming to be the representative-in-interest of the
mortgagors claimed to have paid the amount of the mortgage
money to respoindents 2 to 7 herein on 10th September 1945. She
filed a suit on September 26, 1946 being Suit No. 117 of .1946
praying inter a/ia for ejectment from the suit property of the ap·
pellant (impleaded as defendant No. I in the suit) and another
person impleaded as defendant No. 8, a sub-tenant.
For purposes of Jurisdiction and court-fee she valued the property i:l. suit
i.e. a grove with houses, at Rs. 5,200 besides Rs. 420 by way of
mesne profits.
Alternatively,
she prayed for a
de~ree for
Rs. 3,684 in case possession and occupation was not decreed to
her.
On 2nd November 1951 the Additional Civil Judge of
Mirzapur dismissed the suit as against the appellant and defendants
3 and 4. . The plaintiff, the first respondent herein, filed First
Appeal No. 309 of 1952 is the High Court at Allahabad on 26th
February, 1952.
She valued the ·appeal at Rs. 4,816 and paid
court-fee amounting to Rs. 493-12-0.
During the pendency of
the appeal to the High Court, the original plaintiff died and her
legal representatives were brought on record.
A learned single
Judge of the High Court allowed the appeal by a judgment rendered on l 0th September 1962.
He held that the plaintiff was
entitled to a decree for possession against respondents 1 and 8
and also passed a decree for Rs. 420 against respondent No. 1
alone.
According to the learned Judge defendants 2 to 7 being
the representatives of the mortgagee were proforma defendants and
were not liable for the nlaintiff's costs.
On 8th November, 1 %2
the appellant (defendant No. I in the suit) filed a memorandum of
appeal which was ultimately registered as Special Appeal No. 880
of 1962 paying court-fee amounting to Rs. 425 on the basis of
the valuation of the property at Rs. 4,816.
The Stamp Reporter of the Court reported that the court-fee stamps affixed to the
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SUPREME COURT REPORTS
(1971] l S.C.R.
~emorandum were insufficient by Rs. 425 according to the valuaA
l!on of the property which was Rs. 8,920 on the ~sis of the relief
claimed.
Counsel for the appellant made an endorsement at the
foot of the said report raising objections thereto. The Joint Registrar made a note on 9th November 1962 reading :
"Without going through the papers the question of
B
court·.fees cannot be decided forthwith.
Let it be takPas presented to-day."
The order sheet shows that
In compliance with the Registrar's order dated 11th
Decemb_er 1962 an objection filed by counsel for the appellant was put up with the Stamp Reporter's Report."
On 20th December 1962 the Taxing Qfficer made a note that the
deficiency of Rs. 425 /- had been made good on that date by the
appellent and that counsel expressed his desire not to press the
objection raised earlier.
The Taxing Officer directed that the
matter be placed before the Court for orders as to the acceptance
· Qf stamps to make good the deficiency and for amendment of the
valuation of the Special Appeal.
The matter ·appeared on the
board of a Division Bench of the High Court on 31st December,.
1962 when it was adjourned till 3rd January 1963. On the iast
mentioned date the Bench allowed the amendment of the valuation
of the appeal and directed the admission of the appeal and issue
of notices.
On the matter appearing before another "Division
Bench on 4th January, 1963 and explanatory order was made
recording that the court-fee on the memorandum of. the Special
Appeal was originally deficient because the First Appeal had been
wrongly under-valued inasmuch as the valuation of the property
had been determined by the tral court nt the figure of Rs. 8,920.
After that determination, the trial courthad called upon the plaintiff to make up the deficiency in respect of the court-fee for the
relief of possession and the plaintiff had complied with that order.
Consequently the order of the trial court determining the court-fee
payable as well as the valuation had become final. . Th~ plaintiff
should have valued the First Appeal at Rs. 8,920 ajld his _counsel
was prepared to make up the deficiency in court-fee.
_ The point to note is that the appellant in the Special Appeal
was probably not very much to blame inasmuch as he had valued
the same according to the valuation put on the First Appeal .by
the plaintiff herself to start with. The question however remams
as to whether on the deficiency being made good the appeal could
. be treated as one pending on 12th November, 1962.
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MANNAN LAL v. CHHOTAKA BIBI (Mitter,./,)
257
Appeals being creatures of statutes or statutory rules, we must
turn to the Code of Civil Procedure first to find out how they are
to be instituted. Order 41. rule 1 (1) lays down that :
"Every appeal shall be preferred in the form of a
memorandum signed by the appellant or his pleader and
presented to the Court or to such officer as it appoints
in this behalf. The memorandum shall be accompanied
by a copy of the decree appealed from and (unless the
Appellate Court dispenses therewith) of the judgment
on which it is founded."
Sub-r.(2) of the rule provides that the memorandum shall set forth
concisely and under distinct heads, the grounds of objecton to the
decree appealed from without any argument or narrative; and such
grounds shall be numbered consecutively. Under rule 9(1) of the
Order:
"Whether a memorandum of appeal is admitted, the
Appellate Court of the proper officer of that Court shall
endors thereon the date oi presentation, and shall register the appeal in a book to be kept for the purpose."
Under sub-r.(2) such book is called the Register of Appeals. Rule
22 of Order 41 gives the respondent, although he may not have
appealed from any part of the decree, the right to support the decree on any of the grounds decided against him and further to take
E
any cross·objection to the decree which he could have taken by
. way of appeal provided he files such objection in the appellate court
in the manner laid down.
Under sub-r.(2) such cross-objection
has to be put up in the .form of a memorandum.
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It is necessary to note the relevant provisions of the Rules of
the High Court Allahabad High · Court made in exercise of the
powers conferred by Art.225 of the Constitution of India and all
other powers enabling the court in that behalf with regard to the
institution of appeals generally and also Special Appeals, In
Chapter I rule 3 a Special Appeal is defined as an appeal from
the judgment of one Judge.
Omitting the words which are not
relevant, rule 5 of Chapter VIII provides :
"An appeal sh.all lie to the Court from the judgment
...... of one Judge made in the exercise of appellate
jurisdiction in respect of a decree or order made in the
exercise of appellate jurisdiction by a court subject to
the superintendence of the Court, where .the Judge who
passed the judgment declares that the case is a fit one
for appeal."
Chapter XI deals· in general with the presentation of appeals and
applications.
Under rule l of this Chapter every memorandum of
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SUPREME COURT REPORTS
[1971] l S.C.R.
appeal or
objections must
be presented
for admission
in court.
This rule however does not apply to appeals and applications that may under the rules of the court be filed before
the Registrar or other officers.
Under r. 3 of Chapter XI no
memorandum of appeal shall be presented unless it bears an oliice
report specifying the matters mentioned in clauses (a) to (t) thereof.
Cl. (a) relates to the question whether the memorandum of
appeal is within time or if beyond time, the period by which
it is beyond time. Under cl. ( d) a statement has to be made whether any court-fee is payable or not.
The matters mentioned in
cl. (e) are:
"Where court-fee is payable, whether the court-fee
paid is sufficient and in case it is deficient, the extent fo
such deficiency."
The rule also lays down that where a report under cl. ( e) cannot
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be made without an examinati()n of the record, the office siiall
state that a further report would be made on receipt of the record.
Under r. 4 it is open to the appellant or his advocate if he contests
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the office report as to court-fee to take the memorandum of appeal
to the Taxing Officer-for the determination of his objection and
'the Taxing Officer must determine it forthwith.
Further, if the
Taxing Officer de.cides that there is deficiency in the amount of the
court-fee paid, the ·appellant or the applicant as the case may be
-shall make good such deficiency before presenting the memoranE
· ,dum or application to the court; provided that if limitation is
about to expire and the time is too short to enable the appellant
to mak~ good such deficiency, he can present the memorandum
of appeal in court and make good such deficiency within such time
as may be allowed by the court. Under r. 10(2) of Chapter IX:
"In a,Bpecial Appeal from the judgment of one Judge
passed (n the exercise of appellate jurisdiction, the memorandum of appeal, duly stamped, shall be presented
within sixty days from the date of judgment.
The memorandum of appeal need not be accompanied by a
copy of the judgmei11t appealed froin or a copy of the
decree or formal order and the time taken in obtaining
such copies shall not be excluded in computing the said
period of sixty days."
Under sub-r. (1) of r. 21 of Chapter IX no memorandum of appeal
shall be received if it.is not in the proper form or it is not accompanied by the necessary documents.
Under sub-r. (2) :
"If the required documents are not supplied or the
defects are not removed within the time allowed by the
Judge or the Regisfrar, as the case may be, the app)iF
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MANNAN LAL v. CHHOTAKA BIBI (Mitter J.)
259
cation or memorandum of appeal shall be listed for rejection before the Court."
Rule 1 of Chapter XXXVIII lays down that a separate register
of institutions in the prescribed focm has to be kept for each of
the classes of cases mentioned therein.
The 14th item in the
list is "Special Appeals".
Under this rule cases must be entered
in the register according to the date of admission and no dekctive
case should be entered therein.
Under r. 3 of this Chapter a
register in the prescribed form has to be maintained of all defective
cases under several classes mentioned in rule 1 including Special
Appeals.
Such cases have to be entered in the register a"cording
to the date of presentation and a record kept of the steps taken
from time to time to remove the defect.
As soon as the defect
has been removed and the case admitted, it has to be entered in
the appropriate register of institutions.
The recital of facts given above show that the 1 ules of the
High Courl were folowed in this case and the requirements thereof were duly complied with.
The Court Fees Act, VII of 1870, provides for the payment
of various fees payable in respect of different kinds of documents
to be filed in court.
Omitting the words which are not relevant,
s. 4 lays down that :
"No document of any of the kinds _specified in the
First or Second Schedule to this Act annexed, as chargeable with fees, shall be exhibited or recorded in, or
shall be received or furnished by, any of the said High
Courts in any case coming before such Court jn the exercise of ...... its jurisdiction as regards appeals from
the judgments ........ of one or more Judges of the
said Court, or of .a Division Court. . . . . . . . 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."
Among the documents specified in the First Schedule chargeable
with fees which are ad va/orem are memoranda of appeal presented
to any court.
Section 28 of the Act lays down that no document which ought to bear a stamp under this Act shall be of any
validity unless and until it. is properly stamped.
This is howe~er
subject to the qualification that if any such document is through
mistake or inadvertance received, filed or used in any court without being properly stampea, the presiding Judge or the head of
the office as the case may be or in the case of a High Court, any
Judge of such court may, if he thinks fit, order that such document be stamped as he may direct; and on such document being
260
SUPREME COURT REPORTS
(1971] I S.C .. R.
stamped accordingly,
the same and every proceeding relative
thereto sha1I be as valid as if it had been properly stamped in the
first instance.
As an appeal under the Code of Civil Procedure can only be
preferred ia the form of a memorandum laid down in Order 41
rule 1 of the Code and further as the memorandum of &ppeal has
to be stamped in accordance with the Court Fees Act it would
appear that'unless there were some saving provisions such a memorandum if not properly stamped could not be received a1 all by
the High Court when a litigant desires to file an appeal or a
Special Appeal.
The rules of the Allahabad High Court specified
above are aimed at adjudication of any dispute or objection as
to court-fee payable on a memorandum of appeal.
When it is
found that the court-fee paid is deficient, the court has power to
allow time .for the purpose of making the deficiency good.
Even
where limitation is about to expire and the time is too short to
enable the appellant to make good the deficiency the court mayallow the litigant time for the purpose.
This shows th3t the court
can keep on its file a n~mora,1dum of appeal although insufficiently stamped and the court will ordinarily allow an .oppJrt unity to
the appellant to make good the deficiency and will not thro·,v it
out of hand. . The Court Fees Act however lays an embargo on
the court from receiving any document including a memorandum
of appeal if it is not J?!Operly stamped.
This provision of law
was strictly construed in the case of Ba/karan Rai v. Gobind Nath
Tiwari (1 ) where the Allahabad High Court took the view that
where a memorandum of appeal was insufficiently st&mped when
tendered was subsequently stamped sufficiently, the affixing of the
full stamps would not have a retrospective effect so as to validate
the original presentation unless it has been done by order made
under the second paragraph of s. 28 of the Court Fees Act.
In
that case the court allowed the preliminary obji:ction that as the
making good of the deficiency had taken place after the period of
limitation there was before the court no valid appeal in regard
whereof a decision.could be given on merits.
The rigour of the law as interpreted in this decision was mitigated by the. amendment of the Code of Civil Procedure of 1882
by th¢ insertion of section 582-A b~ Act VI of 1892 reading:
"If a memorandum of appeal or application for a
review of judgment has been presented within the proper period of limitation, but is written upon paper insufficiently stamped, and the insufficiency of the stamp
was caused by a mistake-on the part of the appeilant or
ap!Jlicant as to ·~~ amount of the requisite stamp, the
(1) I.LR. 12 Allahabad 129 F.B.
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memorandum of appeal or application shall have the
same effect, and be as valid as if it had been properly
stamped:
Provided that such appeal or application shall be
rejected unless t!ie appellant or applicant supplies the requisite stamp within a reasonable time after the
discovery of the mistake to be fixed by the court." .
The above provision was enacted in a slightly different form in
the Code of 1908.
S. 149 of the new Code reads :
"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 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 pay-
. able, shall have the same force and effect as if such fee
had been paid in the first instance."
The above section therefore mitigates the rigour of s. 4 of
the Court Fees Act and it is for the court in its discretion to allow
a person who has filed a memorandum of appeal with deficient
court-fee to make good the deficiency and the making good of
such deficiency cures the defect in the memorandum not from
the time when it is made bqt from the time when it was first
presented in court.
In our view in considering the question as to the maintainability of an appeal when the court-fee paid was insufficient to
start with but the deficiency is made good later on, the provisions·
of the Court Fees Act and the Code of Civil Procedure have to
be read together to form a harmonious whole and no effort should
be made to give precedence to provisions in one over those of
the other unless the express words of a statute clearly override
those of the other.
G
Apart from the decisions bearing on the point, there can in
our opinion, be no doubt that s.4 of the Court Fees Act is not the
last word on the subject and the court must consider the provisions
of both the Act and the Code to harmonise the sets of provisions
which can only be done by reading s. 149 as a proviso to s. 4 of
the Court Fees Act by allowing the deficiency to be made good
H
within a period of time fixed by it. If the deficiency is made good
no possible objection can be raised on the ground of the bar of
limitation : the memorandum of appeal must be treated as one
filed within the period fixed by the Limitation Act subject to any
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SUPREME COURT REPORTS
[1971] l S.C.R.
~xpress provision to the contrary in that Act and the appeal must
be treated as pending from the date when the memorandum of appeal was presented in court.
In our view it must be treated as
pending from the date of presentation not only for the purpose of
limitation but also for the purpose of sufficiency as to court-fee
under s. 149 of the Code. If such a construction be '.lccepted,
the bar of s. 3 of the Abolition of Letters Patent Appeals Act of
1962 would not operate in the instant case.
In the case of Gavarnga Sahu v. Botokrishna Patro( 1 ) a Full
Bench of the Madras High Court was called upon to adjudicate on
the question of the validity of a plaint presented on a paper insufficiently stamped to start with but where the deficiency was
made good within the time given by the court under s.54(b) of the
Code of Civil Procedure, 1882.
section 54(b) of the C0de of
1882 is reproduced in Order 7, rule 11 of the Code of 1908.
Under the said provisions a plaint has to be rejected if the relief
sought is properly valued but the plant is written upon a paper
insufficiently stamped and the plaintiff on being required by the
court to supply the requisite stamp within a time to be fixed by it
fails to do so.
The argument advanced in that case before the
·court appears to have been to the effect that a plaint which was
not sufficiently stamped within the period of limitation was not. a
valid plaint at all.
In the order of reference the Jaw on the subject
was set forth in some detail and the learned referring judge opined
that an insufficiently stamped plaint did not become a new plaint
when the ueficiency was ~upplied. , The learned Judges of the Full
Bench fμlly agreed with the view taken in the order of reference
and with the reasons upon which it was based and merely added
that s.149 of the Civil Procedure Code of 1908 was in accordance
with the view.
'The Judicial Committee of the Party Council gHvc a decision
much to the same effect in Faizullah v. Mau/adad('). In this ca;e
the suit was filed for accounts and the settlement of the sums due
in connection with the affairs of a partnership firm, the plaintiffs
valui1ng the suit at Rs. 3,000 for the purpose of court fees
and
asking for rendition of accounts and a decree for Rs. 3,000 with
the statement tliat if more than that amount was found due the
plaiμtiffs would pay an additional wurt-fee. The defendant asked
for a decree in his own favour for Rs. 29,000/. The trial Judge
passed a final decree in favour of the defendant for Rs. 19,991 and
no sum was found due by him to the plaintiffs under their claim
for Rs. 3,000. The judgment was appealed from by both parties.
·The plaintiffs-appellants challenged the decree against them and
maintained that not only that decree be set aside but one in their
favour for Rs. 3,000/. or less or more should be granted.
They
(I) I.LR. 32 Madras 305 F.B.
(2) A.I.R. 1929 P.C. 147.
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valued the appeal for purposes of comt-fce at Rs. 19,991 aud
paid fees thereon amounting to Rs. 97 5.
The question as to the
invalidity of the appeal on the ground of insufficiency of court-fee
was answered by the Judicial Committee by holding that the
memorandum of appeal did state in tenns of the Act (i.e. the
Court Fees Act) the amount at which the relief was sought and
that determined the appeal. ·According to the Judicial Committee
even if it was held that the fee payable was insufficient it was the
duty of the court in exercise of its discretion to give an opportunity
to add to the amount lodged the extra sum of Rs. 70 or 80 required
for deferring the question of the amount of fee under the Court
Fees Act until final value was ascertained. Referring to the pro.-
visions of s. 149 of the Code the Board observed that the discretion under that section "extended to the whole or any pan of any
fee prescribed and could be exercised at any stage in the case,
while finally, upon the extra payment bein~ made, the document
is to have the same effect as if it hed been paid in the first \nstance".
The Board further held that as the decree of the Subordinate Judge.
was dated 24th March, 1924, the first appeal was on 27th May
and the Second Appeal on 2nd June the time for limitation of
the appeal being 90 days both appeals were within time. It was
further held that the appeals were not a nullity and op. the contrary
they were documents duly presented to and accepted by the court,
and as to the court fee thereon, should the valuation be unsatis·
factory or in the end insufficient, that is validated by the additional
payment, the result of which payment is that the document.
namely, the memorandum of appeal, stands good from its date
and the appeals are accordingly not time-barred
On a parity- of reasoning it is difficult to see why if a mcmoran·
dum of appeal insufficiently stamped is not to be rejected as barred
under the Limitation Act, why a different conclusion should ft.ow
r . as regards compliaince with the Court Fees Act in view of the ex·
. press provisions of s.149 of the Code. In our opinion s.14~ will
cure the defect as from the date when the memorandum of appeal
was filed alike for the purpose of Limitation Act and the Court Fees
Act and the appeal must be treated as one pending on the 9th
November 1962 an.d as such unaffected by s.3 of the U.P. Act of
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1962.
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In Wajid Ali v. lsar Ba1W( 1) s. 149 was interpreted as a proviso to s. 4 of the Court Fees Act in order to avoid contradiction
between the two sections. The court was however careful to lay
down that discretion had to be exercised in allowing detlciency
of court fees to be made good but once it was done a document
was to be deemed to have been presented and received on the date
on which it was originally filed. This was a case of plaint.
(I) A..I.R. t9St Allahabad• 4 F. B.
264
SUPREME .COURT REPORTS
[1971] 1 S.C.R.
In another Full Bench, Hari Har Prasad Singh v. Beni
Chand(1) of the same year dealing with a case of a m~morandum
of appeal which was found defective tor want of proper court-fee
and not admitted in view of s. 4 of the Court Fees Act but returned
or rejected on that ground it was held that the memorandum could
not be treated as an appeal. It was there observed :
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"If s. 4 of the Act (i.e. Court Fees Act) had stood by
itself, an unstamped or insufficiently stamped memorandum of appeal, chargeable with fees, could not have
been received by the High Court for any purpose ....
There is nothing in s. 149 of the Code which overrides
the provisions of s. 4, Court-fees Act, it merely postpones the operation of that section for the time being.
If the whole or part of the requisite court-fee is not paid
within the time allowed by the Court, s. 149 of the
Code cease.s to have effect, and the Court is precluded
from filing or recording an unstamped or insufficiently
stamped memorandum of appeal in court."
According to Stroud, a legal proceeding is "pending" as soon as
commenced, and until it is concluded i.e. so long as the court
having original cognizance of it can make an order on the matters
in issue, or to be dealt with, therein.
When the deficiency in the payment of court-fees 1s made good
and the document or memorandum of appeal is to be given the
force and effect which it would have had if there had been no deficiency, the appeal must be treated as pending on 12th November,
1962. In Nagendra Nath v. Suresh(2) which turned on the interpretation of Art. 182(2) of the Limitation Act of 1908 as regards
th~ validity of an appeal presented in an irregular form the Board
observed that although there was no definition of 'appeal' in the
Civil Procedure Code any application by a party to an appellate
court asking it to set aside or revise a decision of a Subordinate
Judge, is an appeal within the ordinary acceptation of the term,
and that it was no less an appeal because it was irregular and incompetent.
The words used in that judgment are no doubt of wide import.
But however that may be in the case before us there can be no
difficulty in holding that an appeal was presented in terms of
Order 41, r. 1 of the Code inasmuch as all that this provision/of,
law requires for an appeal to be preferred is the presentation in the
· form of a memorandum as therein prescribed. If the court fees
paid thereon be insufficient it does not cease to be a memorandum
of appeal although the court may reject it. If the deficiency in
(I) A.l.R. 1951 Allahabad 79.
(2) A.l.R. 1932 P.C. 165.
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MANNAN LAL v. CHHOTAKA BIBI (Mitter, J.)
265
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the fees is made good in terms of an order of the court, it must be .
held that though the curing of the defect takes place on the date
of the making good of the deficiency, the defect must be treated as
remedied from the date of its original institution.
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In view of the above reasons, we find ourselves unable to concur in the judgment Of the High Court. In the main judgment
under appeal, the reasoning appears to be that the memorandum
of appeal had no effect before the making good of the deficiency
and as the same took place after 12th November 1962 the appeal
was not saved bys. 3(2) of the U.P. Act. The learned Chief Justice
of the Allahabad High Court expressed the opinion
that a memorandum of appeal barred by time stood on a footing
different from the one in which there was deficiency in the courtfree paid.
According to him under s. 3 of the Limitation Act it
is an appeal that is disn)issed and not a memorandum of appeal.
When therefore s.4 of the Court Fees Act deals with a memorandum of appeal the consideration of the laws of limitation bears
no analogy to a deficiency in court-fees. With due respect we are
not impressed by the above reasoning.
As already noted, although there is no definition of the word "appeal" in the Code
of Civil Procedure, it can only be instituted by filing a memoraipdum
of appeal. The filing of memorandum of appeal therefore brings
an appeal into exi~tence; if the memorandum is deficient in courtfecs, it may be rejected and if rejected, the appeal comes to an end.
But if it is not rejected and time is given to the appellant to make
up the deficiency and this opportunity is availed of, s. 149 of the
Code expressly provides that the document is to have validity with
retrospective effect as if the deficiency had been made good in the
first instance. By reason .of the deeming provision in s. 149 the
memorandum of appeal is to have full force and effect and the
anpeal has to be treated as one pending from the date when it was
before the Stamp Reporter and the deficiency noted therein.
In the result, the appeal must be allowed with a direction that
the High Court should hear the Special Appeal instituted on the
9th November, 1962. The costs of this appeal will abide by the
decision of the Special Appeal.
o.c.
.Appeal allowed.