MUHAMMAD HAYAT JUNEJO, J.----This is a plaintiff's appeal against the judgment and decree of a learned Single Judge of this Court, whereby the learned Judge dismissed the appellant's suit for the recovery of Rs. 1,23,797-9-6 of which Rs. 99,407-9-6 were claimed as damages and Rs. 24,390- 0-0 as interest at the rate of six per cent. Per annum from 29th May 1952, up to the date of institution of the suit.
2. The case of the appellant (plaintiff) was that he had entered into a contract with the respondents (defendants) whereby he undertook to supply about 6,500 tons of sea salt to the latter from Aden to Chittagong. For this purpose the appellant chartered a ship namely, s.s. "Tang Shan". The contract was performed by the appellant when s.s. "Tang Shan" arrived at Chittagong Port with the cargo on 15th April 1952. The respondents, however, did not make the necessary arrangements for unloading the same, although they were in a position to do so immediately. As a result of this the ship was delayed and had to remain in the port of Chittagong till 28th May 1952, whereas it should have in the ordinary course left by 5th May 1952 which was the maximum time that the respondents should have taken to discharge the entire cargo after allowing the lay time and the demurrage time fixed by the Charter Party. The respondents paid Rs. 77,251-0-0 as demurrage at the rate of E250 per day for the detention of the ship in excess of the agreed time, but declined to pay the loss alleged to have been suffered by the Karachi Steam Navigation Co.
During the same time, which was to the tune of Rs. 1,75,658-9-6 of this Rs. 77,251-0-0 having been paid by the respondents, the balance amount of Rs. 99,407-9-6 with interest was due to the appellant and was claimed by him.
3. The respondents' (defendants') case was that the appellant's offer to supply salt was conditionally accepted by the respondents, vide their telegram dated 24-1-1952. The alleged contract was, however, never accepted by the respondents. The respondents were, therefore, at the most liable for --250 per day as contained in their litter dated 26-1-1952 and the payment of Rs.
77,251 made by them was in full discharge of their liability. It is stated in the written statement of the respondents that payment of this amount having already been made, there remained no liability of the respondents; and the appellant having accepted this amount must be deemed to have accepted it in full discharge of the respondents' liability and was estopped from making any further claim.
4. On the pleadings of the parties the following issues were framed :-
(1) Is the suit barred by limitation?
(2)Has this Hon'ble Court jurisdiction to try the suit?
(3) Is the alleged contract not in accordance with the provi--sions of section 175(3) of the Government of India Act, 1935? If so what is the effect?
(4) What were the terms of the contract between the plaintiff and the defendant?
(5) Are the defendants liable to pay the increased demurrage charges as claimed by the plaintiff?
(6) Is the plaintiff entitled to the claim in suit against the defendant on the basis of the alleged agreement between the plaintiff and the shipping company?
(7) Did the defendants neglect to make arrangements for unloading the ship? If so, what is the effect?
(8) At what rate the defendants were liable to pay the demurrage ?
(9) What amount has the plaintiff paid in respect of demurrage charges? If so, is he entitled to claim the same from the defendant ?
(10) Was the amount of Rs. 77,251 paid by the defendants in part payment of their liability? What is the effect of the defendant accepting this amount?
(11) Is the defendant liable to the plaintiff' for the claim in suit or any other sum?
(12) Is notice under section 80, C. P. C. Valid?
(13) What should be the decree?
5. The learned Single Judge considered issues Nos. 1, 2 and 10 in the first instance. He decided issue No. 2 in favour of the appellant but as on issues Nos. 1 and 10 his findings were against him he dismissed the appellant's suit by his judgment dated 3-9-1963.
6. Mr. K. A. Ghani, the learned counsel appearing for the res--pondents before us has raised a preliminary point that this appeal is time barred as it was filed beyond the prescribed period of limitation. It is admitted by both the learned counsel appearing in this case that after the judgment was signed on 3-9-1963, a certified copy of the same was applied for by the appellant the very next day, i.e. On 4-9-1963, and it was made ready on 21-9-1963. The decree was signed thereafter on 23-10-1963 and this appeal was presented in Court on 9-1-1964. As however, the court-fee paid on the memorandum of appeal was only Rs. 5 as against the estimated amount of Rs. 2,076 the office raises( an objection on this ground and returned the appeal to the appellant's Advocates Messrs Surridge and Beecheno on 14-1-1964 for compliance of this objection within seven days. Messrs Surridge and Beecheno, however, for reasons best known to them instead of complying with the objections within the prescribed period of seven days kept the papers with them for over 8 months and re-presented the appeal on 16-9-1964. This time also the appeal was filed without any additional court-fee but .It was accompanied by an application under section 149, C. P. C. For permission to pay the deficit court-fee. On 10-10-1964, the matter was returned by the office with another objection which was complied with on 13-10-1964. The appeal alongwith the application under section 149, C. P. C. Was put up before a Division Bench of this Court which passed the following order on 5-11-1964 :- "Let the deficit court-fee be accepted subject to any objection by the respondent at the time of the hearing of the appeal. Admit. Notice."
7. Mr. Hamza A.I, the learned counsel for the appellant has contended that despite the words "subject to any objection by the respondent at the time of the hearing of the appeal", the order dated 5-11-1964 of the Division Bench was final, as a qualified order was not contemplated by law, and we could not, therefore, consider the question of limitation. In support of his contention the learned counsel invited our attention to a case reported as Jowala Singh and others v. Mst. Dhano and others (AIR 1932 Lab. 21) wherein a learned Single Judge observed as follows :---- ---Here the learned District Judge who had jurisdiction to hear the appeal exercised his discretion and allowed the court-fees to be made up. This could only be done under section 149, Civil P. C.
That section clearly lays down that 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.
To my mind that clearly means that once the Court has allowed and accepted payment no further question of limitation arises.
Relying on these observations the learned counsel contends that the appellant, having made up the deficiency in court-fee after he was permitted to do so by the order dated 5-11-1964 of this Court should not now be faced with the prospect of having his appeal rejected as time-barred.
The case cited by the learned counsel is, however, clearly distinguishable inasmuch as, the objection regarding insufficiency of court-fee was raised by the respondents and argued in the presence of the parties before an order under section 149, C. P. C. Was passed by the District Judge.
This can be seen from the passage relied upon by the learned counsel himself which is reproduced above. Mr. Hamza A.I also referred to another Single Judge case of the same High Court reported as Har Lal and others v. Sri Ram (AIR 1933 Lah. 598). In this case also reliance was placed on the case of Jowala Singh v. Mst. Dhano, referred to above and as only a portion of the judgment has been published we do not know the circumstances under which the, general observations relied upon by Mr. Hamza A.I were made.
8. We may in this connection refer to the case of Acharath Parakkat Kunhammad and others v.
Acharath Bappan Karanavan (AIR 1914 Mad. 386) wherein Miller, J. (with whom Tayabji, J.
Concurred) observed as follows :- ---Before we heard the appeal, objection was raised on behalf of the defendants that Appeal No. 210 ought to be dismissed as barred by limitation. The order of the admission Court is, `Delay excused.' Mr. Rosario contended that the Court ought not to have excused the delay. The question was raised whether we have power to set aside the order of the admission Court excusing delay.
For my part, so far as my knowledge of the practice of the Court goes, what is done, and what I have done, sitting in the admission Court is to make the order, sometimes expressly subject to objection, always with the knowledge that should objection be raised it would be dealt with by the Court hearing the appeal to make the order, that is to say, on such prima facie evidence as may be offered by the appellant and leave it to the Court hearing the appeal, should that order be challenged to decide the question. I do not know whether this practice is a desirable one to follow, but I under--stand that to be the practice of the Court.--- ---Unfortunately in this case the delay was excused by a learned Judge of this Court. It was sought to be argued on behalf of the respondent by Mr. Ramamurthi Ayyar that, as a learned Judge of this Court has excused the delay, the only course for the other side was to file a review application. He drew our attention to the decision of Wallace, J. In Basavayya v. Venkatapayya 51 M L J 90=AIR 1926 Mad. 676 but we are unable to find anything in that decision to lay down that a review is the only remedy open to the party to whom notice was not given before passing an order to his detriment. On the other hand, we are in entire agreement with the observations of the learned Judges in Kunhammad v. Kunhammad, that in cases in which a Judge sitting in the Admission Court excuses the delay in payment of court-fee or delay in presentation of the appeal without notice to the other side, it is assumed that the other side would be always at liberty at a subsequent stage or even at the hearing of the appeal to contend that the delay should not have been excused. It is desirable that notice should be given in such cases to the other side to obviate inconvenience and expense which might be avoided if the Court were to eventually refuse to excuse the delay. We, therefore, think that it is open to the other side in this case to come up before us and contend that the delay should not have been excused in the circumstances and if she can persuade us to hold in her favour to dismiss the appeal.--- ---Subject to any objection that may be taken at the hearing, let the deficit court-fee be received, if paid by Monday next.--- their Lordships held that it was only a conditional order and the question of limitation was not decided by the Admission Bench. As the circumstances in this case were similar to those in appeal before us, we cannot resist the temptation of quoting the following observations :- ---We have already set forth our reasons for holding that no Vakil acting with due care and intelligence could have imagined that Rs. 10 was a sufficient court-fee. We have also set forth facts apparent upon the back of the plaint, indicating` that the Vakil not only failed to exercise due care and intelligence in estimating the court-fee, but also when the deficit in the court-fee had been brought to his notice (a deficit which when he gave his attention to the matter he found it impossible to refuse to admit), he acted with wanton negligence from the end of July to the end of November. It has been so frequently held that wanton negligence by Vakil is not sufficient ground for the exercise of the Court's clemency under section 5, Limitation Act, that it is unnecessary to quote cases. We are of opinion that the failure of the plaintiff in this case to file this appeal on a memorandum properly stamped was due to gross negligence on the part of his legal advisers and therefore refuse leave to extend the time. The appeal is, therefore, barred by limitation and is dismissed with costs.--- ---It has been argued that the admission of the appeal by Sankaran Nair, J. Was final, and that the Division Bench had no jurisdiction at the hearing of the appeal to reconsider the question whether the delay was excusable. But this order of admission was made not only in the absence of Ramasami Chettiar, the contesting respondent, but without notice to him. And yet in terms it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour, so that to preclude him from questioning its propriety would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit term of an order like the present that, though unqualified in expression, it should be open to reconsideration at the instance of the party prejudicially affected; and this view is sanctioned by the practice of the Courts in India.--- We may also refer to a case reported as Umed All v. Municipal Committee, Jhangmaghiana (AIR 1922 Lah. 231), where a petition for revision was allowed to be treated as a second appeal at the time of admission subject to the payment of the necessary court-fee within one week, by a learned Judge in Chambers. When the appeal came up for hearing before the Division Bench Scott-Smith and Leslie Jones, JJ., while dismissing the appeal on the point of limitation, observed as follows :- ---The appeal, however, was one which under the rules of the Court had to be heard by a Division Bench and we are of opinion that the Judge who admitted it did not intend to decide any question of limitation. He could not admit the appeal at all until it was properly stamped and his order of admission was of course subject to all just exceptions and to anything which might be urged at the hearing.--- This case was approved by a Division Bench of the Lahore High Court consisting of Sir Abdul Rashid, Actg. C. J. And Khosla, J. In Balwant Singh v. Jagjit Singh and another (AIR 1947 Lab. 210). In that case an appeal was admitted by Sale, J. Who had made it clear in his admission order that his order permitting the appellant to deposit the deficit court-fee shall not be deemed to be an ex parte decision by him that the appeal was within time. The learned Judge made the order condoning the delay for the purpose of the admission of the appeal, "subject to all just exceptions", at the bearing. Their Lordships held that in view of these circumstances it could not be held that Sale, J. Extended the time for the payment of the court-fee under the provisions of section 149, C. P.
C.
Before we conclude our discussion on this point we may also refer to an unreported case of this Court, namely Letters Patent Appeal No. 137 of 1964 (Mst. Saddiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza) in which the following admission order was passed by a Division Bench of this Court :- "(1) Delay condoned subject to any objection by the respondents at the time of the hearing of the appeal.
(2) Let the deficit court-fee be accepted subject to any objection by the respondents at the time of the hearing of the appeal.
(3) Admit. Notice."
When the matter came up for final hearing before a different Bench the plea of limitation was raised by the respondent and their Lordships allowed the plea and dismissed the appeal as time-- -barred with the following observations :- ---It is obvious that a plaint or a memo. Of appeal cannot be treated as properly presented so long as proper court-fee is not paid, therefore, in this case the appeal cannot be taken to have been instituted until the deficiency was made up on the 31st of August 1964. In other words the appeal was instituted on the 31st of August 1964 and was barred by 103 days.---
9. On the question of limitation the first contention of Mr. K. A. Ghani, the learned counsel for the respondent's was that the appeal was hopelessly time-barked even when it was presented for the first time on 9-1-1964. The period of limitation provided under clause 10 of the Letters Patent, is contained an rule 4 of Chapter I-A, Volume V of the Rules and Orders of the High Court of Judicature at Lahore, which reads - as follows :- ---Every appeal to the High Court under clause 10 of the Letters Patent from a judgment of a Judge sitting singly on the appellate side of the High Court, shall be presented within 30 days from the date of the judgment appealed from unless the admitting Bench, in its discretion for good cause shown, grants further time.
The period of limitation for the presentation of an appeal against the judgment of a Single Judge exercising original jurisdiction is 20 days from the date of the judgment (Article 151 of the Schedule to the Indian Limitation Act, 1908).
The periods of limitation prescribed in this Rule, shall be computed in accordance with the provisions of section 12 of the Indian Limitation Act, 1908.--- The learned counsel contends that since under the provisions of this rule the memorandum of appeal need not be accompanied by a copy of the decree, order or judgment appealed from, the appellant should not have waited till a copy of the decree was ready on 23-1.2-1963, but he should have filed his appeal within 20 days after the certified copy of the judgment was available on 21-9- 1963, i.e. On or before 12-10-1963 ; but the appeal was presented for the first time on 9-1-1964. In support of this contention Mr. Ghani has relied on an unreported order of a Division Bench of this Court dismissing L. P. A. No. 122 of 1969 (Messrs Asiatic Industries Ltd. v. Zahid A.I) in limine ; and in particular the following observations of Qadeeruddin Ahmed, J. (as he then was), wherein his Lordship referred to rule 4 quoted above and observed as follows :- ---If this rule is read with clause 10 of the Letters Patent of the High Court of Judicature at Lahore, it becomes clear that Letters Patent Appeals are preferred from judgments, and not from decree. The word `judgment' which occurs in the clause, has been interpreted so liberally, that many orders which are made with no possibility of any decree being prepared under them, have been found to be appealable. The conclu--sion, therefore, is that, for the purpose of a Letters Patent Appeal, a decree prepared in pursuance of a judgment is of no relevance.
We have no doubt that in a Letters Patent Appeal copies of decrees are not only not required by law to be produced, but ordinarily will not even be necessary to look at ; therefore, to try to extend the period of limitation on the ground that a copy of a decree could not be obtained within 20 days, cannot be accepted as a good excuse.--- PLD 1967 SC 271) was distinguished.
The attention of their Lordships was, however, not invited to another judgment of the Supreme Court in the case of Tahir A.I and others v. Chief Judge, Karachi Small Causes Court (PLD 1963 SC 147) wherein it was contended that subsection (1) of section 15 of the Karachi Rent Restriction Act, 1953 did not require that the application should be accompanied by a copy of the judgment and order and therefore, the exclusion provided by section 12(2) of the Limitation Act did not apply. Their Lordships repelled this contention by the following observations :- ---A similar question arose in Jijibhoy N. Surti v. T. S. Chettyar and it was held that in reckoning the time for presenting an application, the time required for obtaining a copy of the decree and judgment must be excluded, even though by the rules of the Court it was not necessary to obtain such copies. For the reasons given in the above case we are also unable to uphold this contention of the respondents.--- These weighty observations would apply to the facts of the present case. We, accordingly, hold that although it may not beta necessary to file a copy of the decree or even a copy of the judgment with a Letters Patent Appeal, the period of limitation would nevertheless run from the date when the copy of the decree is made ready if the appellant has chosen to wait for the same.
10. The next contention of the learned counsel for the respondents was that the provisions of section 149, C. P. C. Can be invoked only in cases where the amount of court-fee payable is open to doubt and cannot be ascertained by the Court till the' record is received or in case of a bona fide mistake in calculation. In support of this contention the learned counsel relied on a Division Bench case of the Patna High Court reported as Ram Sahay Ram Pandey and others v. Kumar Lakshmi Narain Singh (42 I C 675) and in particular on the following observations on page 676 thereof :- ---Section 149 of the present Code takes the place of section 582-A of the Code of 1882 and vests a very wide dis--cretion in the Court but, in my opinion, section 149, should not be construed in such a way as to nullify the express provisions of section 4 of the Court Fees Act. When the amount of the court-fee payable is open to doubt or the amount of the fee cannot be ascertained by the Court till the record is received or it appears that the appellant has made an honest attempt to comply with the law, the Court may properly receive the appeal and allow time for the deficiency, if any, to be made good. In the cases before us the appellants have deliberately and to suit their own convenience paid on their appeals insufficient court-fees, in fact they have paid only a small fraction of the fee which they admit are payable by them. In such cases the Court is not, in my opinion, bound to receive the appeal and give the appellant time to make good the deficiency.
Assuming that the Court has power to receive these appeals and allow time for the deficiency to be made good, I think that we should be exercising our discretion in an unreasonable manner if we were to do so.--- These observations would no doubt support the contention of the learned counsel to some extent, but we feel, that would be taking too restricted a view of the provisions of section 149, C.P.C. Which reads as follows :- ---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 payable, shall have the same force and effect as if such fee had been paid in the first instance.--- It would thus be seen that there are no words in the section to countenance or warrant such a limited construction of the section as is sought to be put upon it by the learned counsel. In fact, as pointed out in the case cited by Mr. Ghani himself the section appears to vest a very wide discretion in the Court.
Moreover, section 149, C. P. C. (1908) as it stands was substituted for section 582-A of the old Code which provided for the validation of insufficiently stamped memoranda of appeals provided they had been presented within the proper period of limitation and "the insufficiency of the stamp was caused by a mistake on the part of the appellant as to the amount of the requisite stamp". Under section 582-A, therefore, the discretion of the Court was fettered by this limitation that the insufficiently stamped memorandum of appeal could not be validated unless the Judge was satisfied that the insufficiency arose from a mistake on the part of the appellant. In section 149 of the present Code, these words of limitation are deliberately omitted thereby suggesting that the Legislature by the new provision intended that the Court should have a free and unfettered discretion in the matter. There seems, therefore, to be no ground for the learned counsel's view that the confessions referred to in section 149, C.P.C. Must be restricted to cases where there was a bona fide misunderstanding of the law as .To valuation. It has also been held by a Division Bench of the Lahore High Court in the case of Jagat Ram v. Misar Kharaiti Ram and another (AIR 1938 Lab. 361) that the question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act.
11. Mr. Hamza A.I, the: learned counsel for the appellant, who appeared to have prepared his brief very well, invited our attention to a Judgment of Shabbir Ahmed, J. Reported as Land Acquisition Collector, Rawalpindi v. Lt.-Gen. Wajid A.I Khan Burki (PLD 1961 Lah. 1028), wherein the learned Judge observed as follows : ---Section 149 of the Code of Civil Procedure gives very wide power to Courts to allow a party to make up the deficiency in court-fee on a document and. Directs that when the deficiency in court- fee has been made up under the orders of the Court, the document shall be deemed to have been properly stamped with court-fee from the date an which it was put in Court: The discretion under section 149, of the Code of Civil Procedure to extend the time is not circumscribed by the statute, but I agree with the learned counsel for the respondent that it should be exercised in proper cases only.
Whether or not a case is one which calls for exercise of powers under section 149 of the Code of Civil Procedure must necessarily depend on the facts of each case. Cases can arise where a party has purposely paid deficient court-fee to gain an advantage and it is obvious that the Court will not exercise its power under section 149 of the Code of Civil Procedure in favour of such a party...--- We respectfully agree with these observations and consequently hold that the discretion conferred on the Court under section 149, C. P. C. Is not confined to cases of mistake in calculation as t contended by the learned counsel for the respondents.
12. We shall now consider whether this is a fit case where the appellant should be allowed to make up the deficit in court-fee after a lapse of more than 8 months. In support of his application under section 149, C. P. C. Filed on 16-9-1964, the appellant had no doubt filed an affidavit but all that was stated in the said affidavit was contained in paragraphs 3 to 6 thereof which read as follows :- ---I say that the above appeal was presented in this Hon'ble Court on 9-1-1964 and a court-fee of Rs. 5 was affixed on the memo. Of appeal.
I say that on 14-1-1964 the above appeal was returned by the office of this Hon'ble Court with the objection that the memo. Of appeal was not properly stamped.
I say that seven days' time was allowed for complying with the objections raised by the office of this Hon'ble Court which expired on 21-1-1964.
I say that I did not deposit the court-fee within time and that now I am willing to deposit it if this Hon'ble Court will be pleased to grant time to me."
It would be seen from what is stated above that in this application under section 149, C. N. C. No ground much less any sufficient ground was shown to exist for the non-payment of the full court-- -fee in the first instance. Even when the appeal was returned on 14-1-1964, the appellant instead of complying with the objection slept aver the matter for 8 months after which the memorandum of appeal was presented with the same court-fee of Rs. 5 only. These facts were obviously not brought to the notice of the Admission Bench nor was the question of limitation raised before their Lordships when they passed the ex parte order on 5-11-1964.
13. On 8-10-1969, when this appeal was fixed for final hearing before us an affidavit was filed on behalf of the respondents wherein one Mr. A. Mohaimen, Assistant Director, Inspection and Control, Food Department, Government of East Pakistan stated that no notice of application under section 149, C. P. C. Was served upon the respondents and that they came to know about it only on the 7th of October 1969. It was inter alia alleged in this affidavit that the appellant deliberately filed this appeal with a stamp of a small amount of Rs. 5 only because he wanted to satisfy himself as to the chances of his success in the appeal ; that there was no bona fide mistake ; on the contrary, it was a skilful device to gain time. Finally an allegation was made that the appellant had really no interest of his own in the appeal but he was contesting the same on behalf of the real party namely, the Steamship Company who was working behind the scene.
14. It was for the first time on 14-10-1969 that the appellant deemed it worthwhile to put forth some reason for the delay on his part. In a counter-affidavit filed on that day, it was stated by him as follows :- ---That after the dismissal of my suit I consulted my legal advisers Messrs Surridge and Beechino in the matter of filing an appeal. I was informed that after they had obtained certified copies of judgment and decree they would advise me further in the matter. On the certified copies of the judgment and decree being obtained I again saw my legal Advisers and I was informed that the memo. Of appeal will carry court-fee stamps of over Rs. 2,000. I frankly informed them that I did not have the amount available and I was then advised that I could institute the appeal with court-fee stamp of Rs. 5 only and I could pay up the deficit court-fee as soon as moneys became available and extension for the payment of court-fees could be secured by an appropriate application. I have acted in this matter in accordance with this advice.---
15. It would thus be seen that the two grounds of poverty and wrong advice of the Advocates were urged for the first time on 14-10-1969. On the basis of this, it is contended by Mr. Hamza A.I, the learned counsel for the appellant that this was pre-eminently a case for the exercise of the judicial authority of the discretion under section 149, C. P. C. The learned counsel has relied mainly on a Full Bench case of this Court in Qadir Bakhsh v. Allah Bakhsh and others (PLD 1967 Pesh. 1). The point involved in that case was, however, entirely different as their Lordships were considering a case where initially an application had been made under Order XLIV, rule 1, Civil P. C. For leave to appeal as a pauper. Their Lordships held that with the rejection of the application for leave to appeal in forma paupris, the memo--randum of appeal remains unaffected and time can be granted under section 149, C. P. C. Either simultaneously with or subsequent to the rejection of the application under Order XLIV, rule 1, C. P. C. To make good the deficit court-fee.
The next two cases relied upon by Mr. Hamza A.I are those of Haji Fateh Muhammad and others v.
Sh. Ghulam Sarwar and others (PLD 1961 B J 52) and Gavaranga Sahu v. Botokrishna Patro and others (I L R32 Mad. 305). Both these cases are distinguishable as they deal with plaints presented with deficit court-fee which are governed by the provisions of Order VII rule 11, Civil P. C. There is a divergence of opinion on the point whether the provisions of Order VII, rule 11, C. P. C. Apply to appeals. According to the High Courts of Bombay, Calcutta and Patna this rule applies to memoranda of appeals also by virtue of section 107, C. P. C. A contrary view has been taken try the High Court of Allahabad, Lahore, Madras and Nagpur. This view proceeds on the ground that the insertion of section 582 in the old Code corresponding to section 149, providing for memoranda of appeals shows that the rule does not apply to the memorandum of appeal. As far this Court, the conflict has been set at rest by the Full Bench in the case of Qadir Bakhsh v. Allah Bakhsh referred to above, wherein it has been clearly held that Order VII, rule 11, C. P. C. Is not applic--able to a memorandum of appeal. It is, therefore, not necessary to consider these two cases cited by Mr. Hamza A.I.
16. In the present case as we have already stated in the application under section 149, C. P. C. Filed on 16-9-1964 no reasons at all were shown as to why this discretion should be exercised in favour of the appellant. In the affidavit filed on 14-10-1969, the only grounds urged were that the appellant was wrongly advised by his Advocate and that he did not have the amount of Rs. 2,000 with him at the time of filing the appeal. We have no doubt that even if this belated affidavit filed more than 5 years after the institution of the appeal is accepted, none of these grounds can be deemed to be a sufficient cause for extension of time under section 149, C. P. C.
It is well settled that mere poverty or ignorance or inability to pay the full court-fee at the time of presenting a suit or appeal is not a ground for seeking indulgence of the Court under section 149, C.
P. C. As can be seen from the following cases In S. Wajid All v. Mst. Isar Bano (AIR 1951 All. 64), a Full Bench of 5 Judges of the Allahabad High Court observed as follows :- ---The question whether poverty or inability to pay full court---fee at the time of fling an appeal be regarded as a sufficient ground for the exercise of the discretion of the Court in extending time under section 149 can be answered only with reference to the facts of a particular case. A mere allegation that a party was unable to pay court-fee on the date when he presented an insufficiently stamped document is not enough for the exercise of discretion in his favour. If, however, further circumstances are shown which satisfy the Court that the inability to pay court- fee has been caused by circumstances beyond the litigant's control, or if substantial amount of court-fee has been paid and a comparatively small amount remains to be paid thus showing the bona fides of the litigant, time may be extended.--- Similarly In re: S. M. Khatumennessa Bibi (AIR 1934 Cal. 659), a Division Bench of the Calcutta High Court held that inability to raise money is not sufficient reason for the exercise of discretion vested in Court under section 149, C. P. C. Their Lordships were further pleased to observe in the case before them that where the appellant deliberately and to suit their convenience, paid on their appeal insufficient court-fees, in fact only a small fraction of the fee which they deemed to be payable by them, the Court would not be bound to receive the appeal and give the appellant time to make good the deficiency. Their Lordships went to the extent of saying that they should be exercising their discretion in art unreasonable manner if they were to do so.
PLD 1949 Lah. 380) a Division Bench of the Lahore High Court consisting of Sir Abdul Rashid, C. J.
And Cornelius, J., observed as follows :- ---Under section 149, Civil Procedure Code the Court un--doubtedly had discretion to enlarge time for the doing of any act allowed by the Code, even after expiry of the period originally fixed for the purpose, but it could not be sail that where the plaintiff had plainly been so very negligent and had moreover completely failed to provide any excuse for his default, that discretion had been properly exercised.
Thus any acts, mistaken or otherwise, of the litigant, or matters affecting his condition, e.g. Poverty or physical inability, can hardly be adduced as `sufficient cause', when account is taken on the other hand, that by lapse of time, the vendee's title in the property has become secure from attack by a pre--emptor.--- Their Lordships of the Supreme Court have also repeatedly laid down that poverty by itself or making arrangement for expenses are not good grounds for condonation of delay.
1969 SCMR 12) it was observed as follows :- ---In any event, this petition is out of time by 5 days and in the application for the condonation of delay the only ground, set out is that the petitioner being a poor person found great difficulty in arranging the expenses for the filing of this review, petition. Poverty by itself is not a ground for condonation of the delay.--- Similar observations were made by their Lordships in A.I Mardan v. Mst. Sahib Ji and others (1968 SCMR 1301) of which the concluding passage was as follows :- "In the petition for condonation of delay it is stated that part of the time was taken by the petitioner to arrange for the legal expenses and part of the time was taken by his counsel in preparing the petition. The above explanation is not considered at all satisfactory."
Again the case of Nabi Bakhsh v. Muhammad Sarfraz (1968 SCMR 17), where a petition for special leave to appeal was filed 13 days after the period of limitation had expired, and the ground urged for the condonation of delay was the erroneous advice given by a lawyer that the Supreme Court Registry was closed during summer vacations and the petition should be filed on the re-opening of the Court; their Lordships held that this was not a sufficient cause for the condonation of the delay.
17. The learned counsel for the appellant relied on the case of the Privy Council in Faizullah Khan and another v. Mauladad Khan and others (AIR 1929 P C 147). In this case the appeal was initially accepted by the Court but it was later discovered that court-fee paid was deficient by about Rs.
70-80 on account of a genuine mistake in valuation. The case is, therefore, distinguishable on facts from the one before us.
Mr. Hamza A.I also relied on the following Single Judge cases :-
(1) Kari n Bakhsh v. Qadir Bakhsh PLD 1954 Lah. 228.
(2) Land Acquisition Collector v. Lt.-Gen. Wajid A.I Khan Barki PLD 1961 Lah. 1028 and
(3) Niaz Begum v Zari Jan and others PLD 1966 Pesh. 51.
The first of these cases dealt with a plaint bearing deficit court-fee; while the second case was one of bona fide mistake as the Government counsel appearing in that case had filed a revision instead of an appeal. The last case from Peshawar was also one of bona fide mistake as the counsel who filed the revision petition was unaware of change in law introduced in 1962 whereby the court-fee payable on such petitions was increased from Rs. 2 to Rs. 7.50.
We, accordingly do not wish to discuss these cases in detail as they are clearly distinguishable on facts.
18. It is provided under sections 4 and 6 of the Court Fees Act, 1870 that no document chargeable with court-fee under that Act shall be filed, or recorded in any Court of justice, unless the court-- fee payable in respect thereof is paid. The institution of a suit or appeal or the presentation of a document would not be a legal institution or presentation if the fee chargeable under the law is not paid at the time of such institution or presentation. Section 149, C. P. C. Enacts an exception to that rule by conferring a discretion on the Court to allow the party to make good the deficit court-fee at any stage of the proceedings, but the payment of fee under this section cannot be claimed by a party as a matter of right. It is the discretion of the Court to allow or not to allow such payment.
Needless to add, that this discretion is not to be exercised arbitrarily or capriciously but judicially and with the utmost care. The reason for this caution is obvious. When an appeal is not filed in time with a proper court-fee the appeal becomes barred and the respondent gets a valuable right. The Court should not, therefore, exercise the discretion under this section to his prejudice except where sufficient grounds exist for the non-payment of the full court-fee in the first instance.
Judged in the light of these principles and the case-law cited above, we have not the slightest hesitation in holding that on the facts and circumstances of this case, the appellant is not entitled to the exercise of the discretion under section 149, C. P. C. In his favour.
19. There is yet another aspect of the matter. The admitted facts in this case are that when the appeal was returned to the appellant's Advocate for payment of deficit court-fee within 7 days the appellant or his Advocates instead of complying with the objections within the prescribed time kept the matter with them without any action on their part for over 8 months till the memorandum of appeal was presented again with the same deficit court-fee. Can it be said in that case that the appeal before the Court was filed on 9-1-1964, for the purpose of computing the period of limitation? In our opinion the answer to this question has to be in the negative. In this connection we cannot do better than to reproduce the weighty observations of the Supreme Court in Asif A.I Shah v. The Superintending Engineer, Quetta (PLD 1963 SC 263). In that case a petition for special leave to appeal which mentioned a number of annexures, was filed within time without the annexures, in the first instance. The office note showed that the petition itself was taken back by the attorney; to be completed and returned. It was thereafter returned 70 days after expiry of limitation.
It was not clear whether it was the attorney or the client who was responsible for this delay. An application for the condonation was filed separately later, and the excuse was given that "the annexures are not part of the order under appeal, hence the appeal is within time". It was added that the applica--petition for condonation was being submitted "to meet the office objection". On these facts, Cornelius, C. J. Observed as follows :- ---It is clear that the condonation application suffers from more than one misconception. When the Attorney took back the petition for special leave, there was left no petition before the Court, whether with or without annexures. The case would have been different if time had been asked for, only to supply the annexures, which were a necessary part of the petition. The claim that the `appeal is within time' makes no sense, for there was no `appeal' and the first time when the `appeal' i.e. The petition was left with the Court for being processed in accordance with law, was long after the expiry of limitation. The need for an application for condonation was a real one, and was not based only on the `office objection'.---
20. Mr. Hamza A.I has lastly contended that his client is really suffering for the wrong advice of his previous Advocates. We are afraid we can do nothing in the matter on this ground. If indeed the Advocates were exclusively at fault, the appellant has his remedies at law.
21. In the result we dismiss this appeal as being time-barred, but in the special circumstances of this case, we would leave the parties to bear their own costs.