LexBUTA SINGH (DEAD) BY L.RS. versus UNION OF INDIA
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BUTA SINGH (DEAD) BY L.RS. v. UNION OF INDIA APRIL 17, 1995 [K. RAMASWAMY AND B.L. HANSARIA, JJ.] Code of Civil Procedure, 190&-Ss.148, 149-0rder 41 Rule 9--Payment of deficit Court fee after appeals are allowed and higher compensation granted-Party deliberately not paying earlier-Held: To allow such a thing is ~- . A B not judicial discretion but showing undue indulgence. C Notification under Section 4(1) of the Land Acquisition Act was published on June 8, 1979. The Land Acquisition Officer made his award on March 13, 1981 determining the compensation. On references under Section 18, the Additional District Judge in his award and decree dated November 6, 1985, enhanced the compensation varying between Rs. 32,772 to Rs. 6,250 per acre depending upon the quality of the land. Claimant filed appeal in the High Court under Section 54 of the Land Acquisition D Act. Single Judge further enhanced the compensation by judgment and decree dated May 21, 1987. On appeal, the Division Bench further en. hanced the compensation varying between Rs. 90,000 to Rs. 30,000 per acre E depending upon the quality of the land. In some of the cases, applications were filed after the judgment was pronounced and permission was sought to pay deficit court fee claiming the enhanced compensation. The applications were rejected by the Division Bench. Hence these appeals. F The appellants contended that they were entitled to pay the deficit court fee for receiving the enhanced compensation granted by the Division Bench as they had kept the matters alive. On behalf of the Union of India it was contended that there were no G bonafides on the part of the claimants, who awaited the decision of the court and sensing the mood of the court, they came forward with an application to condone the delay to pay the deficit court fee; that the claimants were required to pay requisite court fee while presenting the Memorandum of Appeals; and that the claimants would not be permitted H 359 360 SUPREME COURT REPORTS [1995] 3 S.C.R. A to pay the deficit court fee after the appeals are listed for hearing. Dismissing the appeals, this Court ' - HO::LD: 1. It is true that s.149 CPC gives power to the Court to give B lime to the appellant to make up deficiency of court fee when the whole or any part of the fee prescribed under the Court Fee Act on the Memoran- dum or Appeal (MOA) but had not been paid while presenting the same; but the power or the court is one of discretion and not as or right. Generally, before the appeal is admitted under Order 41 Rule 9, the court ~- would exercise the discretion on showing sufficient cause for not making c the required fee on the l\10A. The discretion conferred on the court by s.149 is a judicial discretion. The court is not bound to exercise the discretion unless the applicant shows sufficient cause for the failure to pay deficit court fee or he was under bona fide mistake in payment thereof. Mero poverty or ignorance or inability to pay the court fee at the time of D presenting the appeal is not always a good ground for indulgence under s.149. Bona fide mistake on the part of the appellant in making the deficit court fee may be a ground to exercise discretion in favour of the appellant. It is the duty or the Registry to point out to the appellant or his counsel that deficit court fee is payable on the MOA and some reasonable time may be given for payment of the court fee. The MOA would be returned to E do the needful. If the deficit court fee is not made up and presented within the time enlarged under s.149 CPC, there would be no appeal in the eye of law unless the delay is condoned. If the party deliberately, to suit his convenience, paid insufficient court fee, the mistake is not a bona fide but one of choice made by the party in making the deficit court fee. In that F situation, even after pointing out the need to make the court fee and given time, if the court fee Is not paid and MOA is represented within the ._.... enlarged time, it would be open to the court either to reject the MOA or refuse to condone the delay for not to order showing sufficient cause thereon. Therefore, the court is required to exercise its judicial discretion G keeping the facts and circumstances in each case and not to order for mere asking that indulgence be shown to make good the deficit court fee. In the latter event, it is not the exercise of the judicial discretion but s
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