Report No. 144
5.2.2. Question for consideration.-
The basic question is whether Order 7, rule 11(b) and (c) are attracted to appeals.
5.2.3. According to one view, in such a case, Order 7, rule 11 can be invoked. This means that where the relief claimed in the appeal is under-valued [clause (b)] or, (through the relief is properly valued), the plaint is written upon paper which is insufficiently stamped [clause (c)], the court is expected to call upon the appellant to correct the valuation or to supply the requisite stamp paper within a time fixed by the court. It is only thereafter, i.e. if the appellant does not rectify the deficiency within the fixed time, that the appeal can be rejected. The court cannot straightaway dismiss the appeal for deficiency in court fee.1
1. Anantha Naicken v. Vasudev Naicken, AIR 1967 Ker 85, para. 3 (Vaidialingam, J.) ("If it is found at the hearing that deficit court fee has not been paid, the proper thing would be to stop further hearing , and direct the plaintiff or the party concerned to pay the necessary court fee.")
5.2.4. In the case of a plaint such time is given. The question is whether such an opportunity must be given in the case of memorandum of appeal also. There is a conflict of decisions on the point. According to the following High Courts, time must be given for the purpose:-
(a) Bombay,1
(b) Kerala,2
(c) Orissa,3
(d) Patna,4 and
(e) Tripura.5
1. Phaltan Bank v. Baburao, AIR 1954 Born 43 (45), para 4; Achut Ramchandra v. Nagappa, AIR 1914 Born 249.
2. Anantha Naicken v. Vasudeva Naicken, AIR 1967 Ker 85, para. 3.
3. Achut v. Sibram, ILR 1962 Cut 818.
4. Sarjug Prasad v. Surendrapat, AIR 1939 Pat 137 (DB); Ramati Singh v. Shitab Singh, AIR 1939 Pat 432 (opportunity must be given);
Mahabir Ram v. Kapil Deo, AIR 1957 Pat 11 (1) (Raj Kishore Prasad, J.); Tulsi Ram v. Keshri Prasad, AIR 1962 Pat 189 (190) (case of plaint) (Anant Singh, J.) (opportunity must be given).
5. H.C. Sarkar v. H. Jyoti Bali, AIR 1970 Tri 26 (R.S. Bindra, J.C.).
5.2.5. In contrast, the following High Courts take the view that the appellate court is not bound to grant time, though it has a discretion to grant time:-
(i) Allahabad,1
(ii) Jammu and Kashmir,2
(iii) Madras,3
(iv) Nagpur,4
(v) Punjab,5 and
(vi) Rajasthan.6
1. Wajid Ali v. Isar Bano, AIR 1951 All 64 (Full Bench of 5 Judges) (relying on section 149); Bibbi v. Shugan Chand, AIR 1968 All 216 (224) (court may give time).
2. Collector, Land Acquisition v. Dina Nath, AIR 1977 J&K 11 (15), para. 20.
3. Sitaramiah v. Ramiah, AIR 1941 Mad 838 (FB).
4. Atmarain v. Singhai Kasturchand, AIR 1930 Nag 224 (Macnair, A.J.C.).
5. (a) Raj Kumar v. Amar Singh, AIR 1981 Punj 1 (FB); Jagat Ram v. Khairati Ram, AIR 1938 Lah 316 (FB), see infra;
(b) Balzvant Singh v. Jagjit Singh, AIR 1947 Lah 210 (Elaborate discussion).
6. Amar Singh v. Chaturbhuj, AIR 1957 Raj 367; Gulam v. Shrikalyan, AIR 1975 Raj 150 (152), paras. 7 and 8 (Kan Singh, J.) (Time may be granted at the discretion of the court) (section 149 relied on).
5.2.6. This question is connected with the question whether Order 7, rule 11(c) applies to the rejection of appeal. In 1914, the Bombay High Court took the view that a memorandum of appeal stands on the same footing as a plaint.1 Exactly a year later, the Madras High Court112 doubted the correctness of this judgment. In 1938, Mr. Justice Varadachariar of the Madras High Court, speaking for a Division Bench of the Madras High Court, in an elaborate judgment, held that Order 7, rule 11(c) does not apply to appeals.3
1. Achut Ramachandra v. Nagappa, AIR 1914 Bom 249.
2. Narayana Rao v. Seshamma, AIR 1915 Mad 426 (2).
3. Sitharamayya v. Ivaturi Ramayya, AIR 1938 Mad 316 (DB).
5.2.7. A Division Bench of the Punjab and Haryana High Court1 has laid down the law as under in 1970:
"The latest judgment of the Madras High Court taking the same view is of Varadachariar and Pandrang Row, JJ. in Sitharamayya v. Ivaturi Ramayya, AIR 1038 Mad 316. The learned Judges of the Madras High Court also after considering a large number of previous cases came to the conclusion that the provisions of Order 7, rule 1(c) of the Code of Civil Procedure do not apply to appeals and that the appellate court is entitled to reject an appeal if the full court fee has not been paid without calling upon the appellant to pay the deficient court fee, because, in so far as the memorandum of appeal was concerned, express provision has been made in Order 41, rule 3, for its rejection on the grounds stated in that rule.
After hearing the learned counsellor the parties at length and after careful consideration of the matter, we are inclined to agree with the view taken by the Division. Bench of the Madras High Court in Sitharamayya's case (supra). The provisions of section 107(2) have been expressly made subject to such conditions and limitations 'as may be prescribed.' In section 2(16) 'prescribed' is stated to mean 'prescribed by rules.' Whereas specific provision has been made in rule 11 of Order 7 relating to plaints, no corresponding provision has been made to that effect in Order 41 of the Code, which contains the entire relevant procedure relating to appeals.
Agreeing with the reasoning on which the judgment of the Division Bench of the Lahore High Court was based, we do not appear to be bound to allow the appellants an opportunity to make up the deficiency in court fee after the expiry of the period of limitation for preferring the appeal particularly in a case where there is no dispute about the quantum of the court fee payable, but the appellants have knowingly and deliberately paid deficient court fee on the solitary ground that they were not possessed of sufficient funds to pay the requisite court fee within the period of limitation. Since the petition of appeal did not bear the requisite court fees no proper appeal has in fact been filed in this case."
1. Aley Textile v. British India Corporation, ILR (1970) 2 P&H 127, cited in Raj Kumar v. Amar Singh, AIR 1981 P&H 15, para. 9 (FB).
5.2.8. The Full Bench judgment of the Punjab and Haryana High Court of 1981 approves of the above reasoning.1
1. Raj Kumar v. Amar Singh, AIR 1981 P&H 1 (FB).
5.2.9. In an appeal filed under the Representation of the People Act, the Supreme Court held1 that if the claim of the appellant that on the pleadings in the election petition no friable issue arose is well-founded, then the petition was liable to be dismissed under Order 7, rule 11, even in appeal.
1. Lalit Kishore Chaturvedi v. Jagdish Prasad, AIR 190 SC 1731.
