JUDGMENT M.C. Desai, C.J.
1. I agree fully with Bishambar Dayal, J. and may add few words. There is a distinction between an appeal that is barred by time and an appeal that does not lie at all or is filed through an insufficiently stamped memorandum of appeal which a High Court is forbidden by Section 4 of the Court Fees Act to receive. The ban imposed by Section 4 on the receipt by a High Court of a document insufficiently stamped is not only unambiguous but also emphatic and absolute, bearing no exception at all. Section 6(2) of the Court Fees Act allows a Court to receive a plaint or a memorandum of appeal even though it is insufficiently stamped but it is not to be acted upon unless the plaintiff or the appellant makes good the deficiency in court fee within the time allowed and when it is made good within the time allowed S 5 provides that the date of the institution of the suit or the appeal shall be deemed to be the date on which the suit or the appeal was filed. This provision applies only to courts other than High Courts; Section 6 makes it clear that it does not apply to High Courts. High Courts are governed exclusively and exhaustively by Section 4. Section 28 of the Court Fees Act, deals with insufficiently stamped documents being received, Filed or used through mistake or inadvertence; a Judge of the High Court or a Presiding Judge of a subordinate court may allow the document to be stamped and upon its being stamped it is to be as valid as if it had been properly stamped in the first instance. This provision is not to be treated as a justification for flouting the provisions of Sections 4 and 6 of the Court Fees Act and no court is deliberately to receive a document insufficiently stamped except in the circumstances mentioned in Section 6(2). No time can be given for making good a deficiency of any court tee except as permitted by Section 6(2) and it folows that a High Court has got no power to give time for making good a deficiency in the court fee; it must refuse to receive the document Section 149 C. P. C. is meant to achieve the same object as Section 28 of the Court Feea Act and should not be so Interpreted as to create a conflict with the provisions of the Court Fees Act requiring refection of an insufficiently stamped document or prohibiting its reception. It is not possible to reconcile the provisions of Section 149 Civil Procedure Code with the clear and emphatic provisions of Section 4, Court Fees Act except in one way, which I shall state presently. In Wajid Ali v. Isar Bano, AIR 1951 All 64 a Full Bench of this Court held that Section 149 is to be read at a proviso to Section 4, Court Fees Act in order to avoid contradictions between the two provisions and that the result of reading them together is:
"(1) Ordinarily a document Insufficiently stamped is not to be received ..... in a Court.
(2) When, however, an insufficiently stamped document (a presented to the Court, the Court has to decide whether ft will exercise its discretion in allowing time to the party presenting the document to make good the deficiency. (3) If it decides that time should not be granted, it will return the document as insufficiently stamped." This interpretation is quite inconsistent with the provisions of Section 4 which do not admit of any discretion in the matter. The absolute prohibition contained in Section 4 cannot be converted into a discretionary matter through the process of interpretation. Section 149 is a general section not applicable to a particular court whereas Section 4 is exclusively meant for a High Court; when regard is had to this fact it fs easy to reconcile them by saying that Section 149 applies to courts subordinate to High Court but not to a High Court itself. There is nothing to indicate that it was meant to enable a High Court to flout the provisions of Section 4. Actually it must give way to Section 4; Section 4(1) of the Code itself lays down that "in the absence of any specific provision to the contrary nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force."
The Court Fees Act was in force when the Code was enacted and is a special law dealing with the subject of payment of court fees on documents produced in courts. Therefore, Section 149 of the Code cannot limit or otherwise affect Section 4 of the Court Fees Act and does not permit an insufficiently stamped memorandum of appeal to be received at all and does not permit the deficiency in the court fee to be made good subsequently. An insufficiently stamped memorandum of appeal must not be received by a High Court in any circumstance. Section 4 C. P. C was not at all noticed by the Full Bench in Wajid Ali's case, AIR 1951 All 64 otherwise it would have held that Section 149 C. P. C. cannot prevail against Section 4 Court Fees Act. Its decision requires reconsideration. The result is that what this Court had on 12-14-1963 was only a memorandum of appeal and not an appeal. It was as good as a memorandum of appeal which did not lie at all.
2. A memorandum of appeal that is barred by time stands on a different footing; Section 3 of the Limitation Act does not prohibit its being received, on the other hand it requires the appeal to be dismissed Second Division of the First Schedule to the Limitation Act deals with appeals and not memoranda of appeals; it is an appeal that is governed by the law of Limitation and not a memorandum of appeal. Consequently it is an appeal that is to be dismissed under Section 3 and not a memorandum of appeal. The question of limitation strictly does not go to the root of the jurisdiction of a court to receive a memorandum of appeal; it must receive it though it must dismiss the appeal subsequently. An insufficiently stamped memorandum of appeal cannot be received at all and the law regarding the effect of a memorandum of a time-barred appeal cannot recklessly be applied to a memorandum of appeal that is insufficiently stamped.
3. I have said that Section 149, C. P. C. cannot be applied in the face of Section 4 of the Court Fees Act. But even otherwise what happened here is that an appeal came into existence with effect from the date of its institution e.g. 9-11-1962 only after 3-1-1963 when this Court condoned the delay under Section 149, C. P. C. in paying the deficiency in the court fee. That there was an appeal pending in this case on 12-11-1962, the date mentioned in Act No. 14 of 1962, could be said only on and after 3-1-1963; prior to that date it could not be said that there was an appeal pending on 12-11-1962. On 13-11-1962 it could not be said that there was any appeal pending; there was only a memorandum which did not mature into an appeal because it was insufficiently stamped. If Section 149 were applicable it would mature only on 3-1-1963 when the appellant was permitted to make good the deficiency. What we have to consider is whether actually on 12-11-1962 an appeal was pending or not; the question has to be answered as on the date on which Act No. 14 of 1962 came into force i.e. on 13-11-1962. Could it be said on 13-11-1962 that on 12-11-1962 this appeal was pending? Regardless of how this question could be answered on and after 3-1-1963 it could not be answered otherwise than in the negative on the day on which it arose. It is a mistake to answer the question as if it arose for the first time now i.e. after 3-1-1963. We have to decide the question now but it arose on 13-11-1962 and must decide it as if we were deciding it on that date.
4. There is a distinction between a memorandum of appeal and an appeal as I pointed out in Lala Gyanchand v. Smt Lilarani, Special Appeal No. 565 of 1962 D/- 6-12-1962 (All) and the Union of India v. Raghunand Prasad, Special Appeal No. 734 of 1962 D/- 17-1-1984 (All) the pendency of a memorandum of appeal does not mean a pendency of an appeal. What is considered by Act No. 14 of 1962 is the pendency of an appeal and not the pendency of a memorandum of appeal The question of validity or competency of an appeal cannot arise when there is only a memorandum of appeal and not an appeal before the appellate court. The case of Mela Ram & Sons v. Commissioner oi Income Tax Punjab (S) AIR 1956 SC 367 referred to by my brother Bishambar Dayal is to be distinguished from the case of Commr. of Income-tax v. Arunachalam Chettiar, 1953-23 ITR 180: (AIR 1953 SC 118) which dealt with an appeal that did not lie at all. The case of an appeal instituted through an insufficiently stamped memorandum of appeal is governed by the law applicable to an appeal that does not lie and not by the law applicable to a time-barred appeal B. Dayal, J.
5. This Special Appeal has come before this Full Bench for decision of the following question referred to by a Division Bench of this Court:
"Whether in the light of Section 8 of U. P. Act No. XIV of 1962, this Special Appeal is maintainable?"
The facts which have given rise to this question may be shortly stated as follows. First Appeal No. 309 of 1962 was decided by a learned single Judge of this Court on the 10th of September, 1962. The appeal was allowed. The plaintiff's suit was decreed for possession of the house in dispute and a decree for Rs. 420/- was also passed in favour of the plaintiff. Against that decision, the defendant got the Special Appeal drafted and then presented to the Stamp Reporter on the 8th of November, 1962. The Stamp Reporter reported a deficiency of Rs. 425/- on the memo of appeal. On the 9th of November, 1962, the memo Of appeal with deficient court fee was presented to the Joint Registrar with an objection contesting the report. The Joint Registrar, however, did not find sufficient material before him to decide the question of deficiency in court fee forthwith. He accordingly noted, "without going through the papers the question of court fee cannot be decided forthwith. Let it be taken as presented today." While his document was pending before the Joint Registrar, the U. P. High Court (Abolition of Letters Patent Appeals) Act (U. P. Act No. XIV of 1962) (hereinafter referred to as the Act) was enforced from the 13th of November. 1962. Section 3 of the Act provides as follows:
"3(1) No appeal, arising from a suit or proceeding instituted or commenced, whether prior or subsequent to enforcement of this Act, shall lie to the High Court from a judgment or order of one Judge of the High Court, made in the exercise of appellate jurisdiction ......"
"3(2) Notwithstanding anything contained in Sub-section (1) all appeals pending before the High Court on the date immediately preceding the date of enforcement of this Act shall continue to lie and be heard and disposed of as heretobefore, as if this Act had not been brought into force." Thus under Sub-section (1) of Section 3 of the Act, Letters Patent Appeals (Now called Special Appeals) to a Division Bench against the decision of a learned single Judge in the exercise of appellate jurisdiction were abolished. (It Is not disputed that the present appeal is of the kind prohibited by Section 3(1) of the Act). By Sub-section (2) of Section 3, an exception was created in favour of appeals pending on the date Immediately preceding the date of enforcement. The question for consideration in this appeal, therefore, is whether this case can be considered to be a Special Appeal pending on the 12th of November, 1962 (the date immediately preceding the date of enforcement of the said Act).
6. Before starting consideration oi the question, the narration of facts may be completed. On the 20th of December, 1962, the appellant accepted the deficiency report and deposited the deficit court fee. The case was thereupon put up before a Division Bench of this Court on the 3rd of January, 1963. It was ordered that the delay in filing the deficit court fee be condoned and the appeal be treated as having been filed within time. The learned counsel for the appellant was permitted to amend the valuation of the appeal mentioned in the memorandum and by a separate order of the same date, the appeal was admitted and notice ordered to issue thereon to the respondent. When the respondent put to appearance before the Court, a preliminary objection was taken that the appeal could not be heard as the jurisdiction of the Court to entertain such appeals had come to an end on the 13th of November, 1962, and this case was not pending on the 12th of November. 1962.
7. In order to be covered by the exception contained in Sub-section (2) of Section 3 of the Act, this appeal should have been pending before the High Court on the 12th of November, 1962. The position on that date was that the memo of appeal with a deficit court-fee had been presented to the Joint Registrar on the 9th of November, 1962, and the amount of deficit court fee had not been made good. Could the filing of such a memorandum be considered presentation of the appeal and on the basis of this memorandum is it right to hold that an appeal was pending?
8. The learned counsel for the appellant relied upon the observations made in Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165; Raja Kulkarni v. State of Bombay, AIR 1954 SC 73, (S) AIR 1956 SC 367, Asgarali Nazarali v. State of Bombay, (S) AIR 1957 SC 503 and a Full Bench case of this Court reported in Smt. Rabia Bibi v. Smt. Mohammadi Bibi, AIR 1960 All 515. On the basis of these authorities, the contention of the learned counsel for the appellant is that as soon as a document purporting to he a memo of appeal and praying that the decision of the court below be altered or reversed is presented, an appeal comes into existence and as long as that document has not been rejected or dismissed it must be held that an appeal was pending irrespective of any defect in the document. We are of the opinion that the broad proposition of law contended for by the learned counsel for the appellant cannot be accepted, nor do the authorities, relied on, support it The result of accepting such a proposition would be that an appellant may just scribble out some sort of a ground on a piece of paper praying for the reversal of the decree passed against him and send it to the Court under a registered cover, (with the result that the cover shall be received by some officer of the Court) and the document having come in the Court, an appeal will be deemed to have been filed. This is a startling proposition. We think that a distinction has to be made between such defects as are vital and preclude the document from being treated as a memorandum of appeal at all and other defects which are not so vital and are merely such that the document, even if defective, can bring into existence an appeal, although the appeal may ultimately be dismissed on account of those defects, if not removed. In the present case, the court fee required to be paid on the memorandum of the Special Appeal was not paid.
9. Section 4 of the Court Fees Act, as amended in this State provides;
"4. No document of any of the kinds specified in the first or second schedule to this Act an-nexed, as chargeable with fees, shall be filed, ex-hibited or recorded in, or shall be received or furnished by, any of the High Courts in any case coming before such Court In the exercise of its.....jurisdiction as regards appeals from the judgments.....of one or more Judges of the said Court."
The Court Fees Act, therefore, prohibits the acceptance of this document by the High Court as a memorandum of appeal and when such a document is taken, it is not taken as a memo of appeal by which an appeal is deemed to have been filed but merely as a defective document on the basis of which, after the defect has been removed, an appeal may come into existence.
10. The contention of the learned counsel for the appellant was that Section 149 C. P. C. whittles down the effect of Section 4 of the Court Fees Act and empowers the Court to accept such a defective document as a memo of appeal and consequently when such a document is filed in Court, it must be taken that an appeal is filed. Section 149 of the C. P. C. "provides:
"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 pay-ment 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 may be noted that this section speaks of "the document" and not of appeal or suit and authorises the Court to permit the appellant to file the deficit court-fee. It is only after the Court permits and the deficiency in court fee is made good, that document acquires the force of a memorandum of appeal retrospectively from the date on which it was originally filed. The phrase "shall have the same force and effect as if such fee had been paid in the first instance" is significant It shows that before such fee has been paid, the document does not possess that force and effect which it would after the deficiency in court fee is made good In this case on the 12th of November. 1962, the deficiency was not made good nor was the defect condoned under Section 149 C. P. C. by the Court The document did not have the force of a memorandum of appeal nor did it have the effect of filing an appeal.
11. Now the deficiency in court fee was voluntarily made good on the 20th of December, 1962 and the Court actually condoned the delay on the 3rd of January, 1963. but the position was that on the 13th of November, 1962, the power of this Court to entertain Special Appeals of this nature had come to an end and, therefore, the document which was lying in Court could not be reverted into a memorandum of appeal after the 13th of November, 1962 The voluntary filing of deficiency had, in any case no effect on the validity of the document, for a fresh appeal could not be filed then, and after the Court had lost jurisdiction to entertain Special Appeals, it could not permit an invalid document which did not have the effect of filing a Special Appeal to be converted into an effective memorandum of appeal with retrospective effect Thus the order of the Court dated the 3rd of January 1963 con-doning the delay in making good the deficiency was without jurisdiction and this aspect of the matter was not brought to the notice of the Court. The learned Judges, who passed the order, did not take into consideration the fact that powers to receive appeals of that kind had already come to an end.
12. We may now consider the authorities relied upon by the learned counsel for the appellant. AIR 1932 PC 165 wag a case raising a question of limitation under Article 182 of the Limitation Act, The question was whether the execution application was within limitation from the date of final order passed on the appeal. The contention of the judgment-debtor was that the appeal was incompetent and therefore the date of its decision was irrelevant. Repelling this contention, their Lordships of the Privy Council laid down that the articles of the Limitation Act were to be construed very strictly. The provisions of the Limitation Act are essentially arbitrary and equitable considerations are out of place and in that view it was held that there was no warrant for reading into the words "where there had been an appeal" any qualification either as to the character of the appeal or as to the parties to it; the words meant }ust what hey said. It was further observed as follows:
"So long as there is any question sub fudice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, If the final result is against them, may lead to no advantage."
No such considerations are available in the present case. Moreover, this very Article 182 of the Limitation Act came up for consideration before a Full Bench of this Court in Hari Har Prasad Singh v Beni Chand, AIR 1951 All 79. In that case, an appeal against a decree had been filed on the basis of a memorandum of appeal on which sufficient court Fee had not been paid and such a memorandum of appeal was rejected on that basis. Fresh limitation was sought to be claimed under Art 1822. of the Limitation Act from the date ot such rejection. Reliance was placed on the Privy Council case mentioned above. But the contention was repelled by the learned Judges, who formed the Full Bench. It was held that the memorandum of appeal which was defective on accounl ot proper court fee not having been paid, even it admitted and then rejected on that ground, could not be treated to be an appeal. The Privy Council case was considered and was distinguished on the ground that the appeal there having been entertained admitted and decided on merits different considerations were bound to arise. This Privy Council case is thus of no help to the appellant
13. AIR 1954 SC 73 was a case under the Industrial Disputes Act Under Section 24 of the said Act, the workers were prohibited from indulging in a strike during the pendency of an appeal filed by the industry The office hearers of the Union made speeches exhorting workers to go on strike and they were convicted under Section 27 of that Act The contention on behalt of the accused was that the appeal was an incompetent one and therefore could not be treated as a pending appeal. This contention was repelled by their Lordships of the Supreme Court. The ground on which the contention was raised that it was not a competent appeal does not appear from the report. It was observed:
"Section 24 on a plain and natural construction requires for its application no more than that an appeal should be pending and there is nothing in the language to justify me introduction of the qualification that it should be valid or competent Whether the appeal is valid or competent is a question entirely tor the appellate court before whom the appeal is filed to determine and the determination is possible only after the appeal is heard."
From these observations, it is quite clear that an appeal was pending and the appeal may have been incompetent in the sense that it did not involve a substantial question of law which was necessary under the Act. The position in that case, therefore, was entirely different. In that case, an appeal had been entertained and was pending while in the present case only a document which purported to be a memorandum of appeal, but which could not be accepted as such, was pending in this Court and the proposition laid down by their Lordships of the Supreme Court in that case has no application to the facts of the present case.
14. In (S) AIR 1956 SC 867 the facts were that an appeal under the Income-tax Act had been filed beyond the period of limitation prescribed for the same and it was dismissed summarily on that ground. A question arose whether the order of dismissal was an order in appeal and was as such Itself appealable. It was held that it was an order in appeal and was therefore itself appealable as such. This case is also distinguishable from the present case. When an appeal is filed beyond the period of limitation, it has to be dismissed as an appeal. There is no provision of law saying that a memorandum of appeal can only be accepted if it is filed within the period of limitation. A memorandum of appeal, if otherwise valid, must be accepted by the Court though the Court may subsequently dismiss the appeal as time barred. Their Lordships of the Supreme Court particularly referred to this aspect of the matter and pointed out that the right of appeal had been conferred by Sub-section (1) of Section 30 and the limitation was separately provided by Sub-section (2) of Section 30. Their Lordships observed:
"An appeal preferred in accordance with Section 30(1) must therefore be an appeal in the eye of law though having been presented beyond the period mentioned in Section 30(2) it is liable to be dismissed in limine."
In this connection the provisions of Section 3 of the Limitation Act may also be quoted:
"3. Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence."
Thus an appeal filed beyond time is treated as a properly filed appeal, though it is liable to be dismissed. The cases filed beyond limitation are therefore very different and they have no analogy to the one before us.
15. The last case relied upon by the learned counsel for the appellant is AIR 1960 All 515. It was a Full Bench case of this Court in which a question of limitation under Article 182 of the Limitation Act arose. In that case, an appeal against a decree was dismissed, after it had been admitted and registered, for want of proaecution. Obviously, that case has no application to the facts of the present case. A valid appeal having been filed, it was dismissed for want of further prosecution and it cannot be said that there was no appeal.
16. After a consideration of the matter in all its aspects, we are of the opinion that the question referred to this Full Bench must be answered in the negative as follows:
"In the light of Section 3 of U. P. Act No. XIV of 11962, this Special Appeal is not maintainable."
Pathak, J.
17. I agree with the answer proposed.