(1) The only question with which we are concerned at this stage is whether the appeal was presented in this Court within time and, if nto, should the time be extended and the delay condoned.
(2) It is nto disputed that the appeal was presented in this Court on 12-1-1967. That was the 89th day from the date of the judgment and decree after excluding the period requisite for obtaining the necessary copies. The memorandum of appeal presented on that day bore the court-fee stamp of Rs. 5 only and an application under sections 149 and 151, Code of Civil Procedure, was made for extending the time by a fortnight for paying the full court-fee. The reason given in the petition was that sanction for withdrawing the amount to cover court-fee had nto till then been issued by the department concerned due to official routine in spite of best efforts by the Land Acquisition Collector, Delhi. The court-fee making up the requisite amount was filed in Court on 17-1-1967 and antoher formal application under section 149 and 151, Civil Procedure Code, was also presented to this Court for accepting the same. It is these applications which we are called upon to consider and dispose of. Now, it is obvious that the memorandum of appeal was presented in this Court in time. The only question which requires our decision is if it is a fit case for extending time for making good the deficiency. On 12-1-1967, limitation had nto yet expired. Prayer was made to extend time for making was closed from 13th to 15th January, 1967 on account of Id-Iu-Fitr, second Saturday and Sunday. It would, thereforee, be clear that had the court-fee been made good on 16-1-1967, the appeal would have been amply within time and no formal order of condensation from the Court would be required. However, there was delay of on day and the Court-fee was made good on 17-1-1967.
(3) The discretion conferred on a Court by Section 149, Civil Procedure Code, as observed by a Full Bench of the Lahore High Court in Jagat Ram v. Misar Kharaiti Ram Air 1938 Lah 361 is normally expected to be exercised in favor of the litigant except in cases of contumacy, of positive mala fides or reasons of similar kind. The question of bona fides in this connection is to be construed in the sense used in the General Clauses Act and nto in the Limitation Act. A thing is accordingly to be presumed to be done bona fide if it is done honestly, whether it is done negligently or nto, for the purposes of judging whether the discretion under section 149, Civil Procedure Code, should or should nto be exercised in favor of the litigant. On this point of view, there is no proof and no suggestion has been made in this Court that there was any mala fides on the part of the appellant.
(4) The submission on behalf of the respondents that the discretion should nto be exercised in favor of the appellant because a right has accrued to the respondents by reason of he appeal having nto been presented in Court within time bearing proper court-fee, is nto easy to sustain on the facts and circumstances of this case. It is true that a document nto bearing proper court-fee cannto be considered to be validly presented to the Court, but the principle underlying section 149 suggests that the question of court-fee is a question between the Revenue and the litigant and, thereforee, the Court has a discretion - albeit judicial discreation - to allow a litigant to pay the court-fee prescribed for any by the law, which he should have paid earlier and the subsequent payment is to have the same force and effect as if such fee had been paid in the first instance. The Court has really to keep all the relevant facts in view and then come to a decision whether or nto to exercise judicial discretion in favor of the litigant concerned, bearing in mind the rule laid down in the case of Jagat Ram, Air 1938 Lah 361. I may also make a passing reference to a decision of the Supreme Court in Mahanth Ram Das v. Ganga Das, : 3SCR763 , in which sections 148 and 149 of the Code of Civil Procedure were held to be liberal in granting time to the litigant to make good the deficiency in court-fee. Extension in his respect, it is well to remember, is open to be granted even after the expiry of the time fixed. We, have thereforee, no hesitation in extending the time for payment of full court-fee and in holding that the appeal must be deemed to have been presented within limitation.
(5) Before us, it was argued that on 16-1-1967 there was great rush at the stamp-vendors place and the requisite court-fee could only be secured at about 4 p.m. for this submission, except for the bald assertion at the bar, there is no material to support and the application dated 17-1-1967 filed through Shri S. N. Shankar, the then Government counsel, also does nto give this reason.
(6) Before closing, we cannto help pointing out that the Government departments should normally pay proper attention and care to the matter of court-fee and be ready with the requisite amount so as to be able to present the appeal within the time prescribed. Rules 11 and 13, Chapter 1-A, Vol. V, High Court Rules and orders, deserve to be kept in view by all litigants, including the Government departments. In the present case, a certified copy of the judgment was actually ready on 20-10-1966 and the court-fee stamp of Rupees 5/- affixed on the appeal was, as it clear from the endorsement, purchased on 20-12-1966. The delay in this matter was nto free from risk and the mere fact that the appellant happened to be a Government department and the financial loss was to be borne by the public exchequer, could constitute no adequate and legitimate ground for adopting an indifferent attitude: on the contrary, the fact that a public servant is acting for and on behalf of the State, requires him to display a greater sense of concern and responsibility because he is expected to act as a trustee for the public interest. To adopt an attitude of indifference in this respect is likely to make the people lose their faith in the virtues of our democratic set-up which is nto a consummation to be desired, We also consider it proper to make it clear that too frequent reliance on section 149 of the Code as a matter of routine or habit by the Government departments for the purpose of shielding their indifference and unconcern towards timely provision of court-fee for causes to be taken to Courts, is liable to be construed as abuse and misuse of this section. It may be emphasised that S. 149 is nto intended to serve as a panacea for all habitual and methodical delays in the matter of court-fee by the Government departments which can, by timely action, secure court-fee well within the prescribed period.
(7) For the reasons foregoing, we extend time and hold that the appeal must be considered to have been presented within limitation. In the peculiar circumstances of this case, there would be no order as to costs of this hearing.
(8) Order accordingly.