MANNAN LAL versus MST. CHHOTAKA BIBI

Citation: [1971] 1 S.C.R. 253 · Decided: 10-04-1970 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
E 
G 
H 
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 sub-
s. (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 en-
forcement of the Act. The memorandum of appeal in Special Appeal No. 
1880 of 1962 was presented in the High Court of Allahabad on Novem-
ber 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. 
A 
B 
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 Pra

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