MOHAMMAD MAHIBULLA AND ANR versus SETH CHAMAN LAL (DEAD) BY LRS. AND ORS.

Citation: [1991] SUPP. 1 S.C.R. 179 · Decided: 18-09-1991 · Supreme Court of India · Bench: RANGANATH MISRA, A.M. AHMADI, P.B. SAWANT · Disposal: Appeal(s) allowed

Judgment (excerpt)

MOHAMMAD MAHIBULLA AND ANR. 
v. 
SETH CHAMAN LAL (DEAD) BY LRS. AND ORS. 
SEPTEMBER 18,1991 
(RANGANATH MISRA, CJ., A.M. AHMADI AND P.B. 
SAWANT, JJ.) 
Code of Civil Procedure,1908-Sectio_ns 107 (2),149, OrderVII-
Proper court-fees not paid on the memorandum of appeal-Duty of appellate 
Court indicated-Costs to respondents for appellants negligence. 
The plaintiff-Wakf Board's suit for declaration of the right to the 
passage and possession thereof having been 'msmissed by the Trial Court, 
a tide appeal was tiled before the District Judge. 
A Court -fee of Rs. 15 was paid on the plaint by the Wakf Board by 
A 
B 
c 
an exemption notification. On its. memorandum of appeal, the plaintiff D 
bad paid the same amount of court fee. 
Respondents asked for dismissal of the memorandum of appeal as It 
had not _been sufficiently stamped. 
The Additional District Judge dismissed the memorandum of E 
appeal. 
The High Court did not interfere, when plaintiff took the matter 
- -J.. 
before it. 
Hence this appeal by special leave by the plaintiff contending that F 
the learned Additional District Judge instead of dismissing the 
memorandum of appeal, an opportunity should have been given and the , 
appellant should have bee~ called upon to make good the deficiency. 
Allowing the appeal, this Court, 
G 
~ 
HELD: 1. When the lower Appellate Court came to hold that the 
memorandum of appeal had not been sufficiently stamped, an opportunity 
should have been given by the Court to the appellant to make good the 
balance court -fee within a time to be indicated and if there was failure to 
c~mply with the direction of the Court, the memorandum of appeal could H 
179 
180 
SUPREME COURT REPORTS 
(1991) SUPP. 1 S. C.R. 
A have been dismissed. This opportunity having not been given, the 
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dismissal of the appeal was not appropriate. [181F-GJ 
2. This is a case of negligence on the part of the appellants 
and,therefore, the respondents who have been dragged in these 
proceedings for about 10 years should be co~pensated, by way of costs of 
B Rs. 1,000. (182 BJ 
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1290 of 
1979.. 
.~ 
From the Judgment and Order dated 16.8.1977 of the Punjab and 
C . Haryana High Court in Res;ar Second Appeal No. 1001 of 1966. 
D 
Dhruv Mehta and S.K Mehta (NP) for the Appellants. 
J.D. Jain for the Respondent. 
The following Order of the Court was delivered: 
This is an appeal by special leave by the plaintiff-Wakf Board. Its 
suit for declaration of the right to the passage and possession thereof 
having been dismissed by the Trial Court, a title appeal was filed before the 
District Judge of Kamal. By an exemption notification on the plaint in a 
suit of this type filed by the Wakf Board, court-fee of Rs. 15 is payable. On 
E its memorandum of appeal, the plaintiff had paid the same amount of 
court-fee also. Objection was raised to sufficiency of court-fee and respon-
dents asked for dismissal of the. memorandum of appeal as it had not been 
sufficiently stamped. As a fact, while court fee of Rs. 638 was payable, 
court fee of Rs. is had been paid. This matter was preliminarily considered 
by the appellate court and by the order dated 5.5.1966 the Additional 
F District Judge sustained the objection. and directtrd the memorandum of 
appeal to be dismissed. The High Court did not interfere when plaintiff 
took the matter before it. Ultimately special leave had been granted by this 
court and at the time of grant of leave, the following order was made: 
"As the petitioner is willing to pay deficit court fee on the memo 
G 
of appeal before the District Judge without prejudice, we direct 
the issue of show cause notice to the other side." 
It is unfortunate that even when that order was i;nade on 27.11.1978 
this matter is coming for final disposal almost 13 years thereafter. 
The plea raised by the appellant before the learned Additional Dis-
H trict Judge that the appeal was a continuation of the suit and the same 
MAHIBULl.A v. CHAMAN l.AL. 
181 
court fee as was payable on the plaint was appropriate in appeal bad been A 
~ rightly negatived. At the trial stage, there was an exemption and since it 
was specifically confmed to the trial stage there was no ground to claim the 
benefit at the appellate stage also. But when the learned Additional Dis-
trict Judge came to hold that the memorandum of appeal had not been 
sufficiently stamped, instead of outright dismissing the memorandum of 
appeal, an opportun

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