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    Tuesday, 19 January 2016

    Deficiency in Court Fee

    1. Introduction
    Sections 4 and 6 of the Court fees Act, 1870 provides that no document chargeable with court fee shall be filed or received in any court unless proper court fee has been affixed thereon. Section 149 CPC provides an exception to this rule and it is to be read as proviso to sections 4 and 6 of C.F.A, according to which a court may grant time to party to make good the deficiency even after expiry of the time and at any stage.

    2. Meaning of Deficiency in Court Fee
    Where the whole or any part of prescribed fee upon any document relating to court fee has not been paid, it is called deficiency in court fee.

    3. Relevant Provisions
    Following are the relevant provision of Court fees Act, 1870 regarding the concerned topic.
    • Section 4 and 6 of C.F.A
    • Section 148, 149, order 7 Rule 11 of C.P.C

    4. General Rule Regarding Payment of court fee
    Section 4 and 6 of C.F.A provides that no document, chargeable with court fee under the Act, shall be filled or recorded in any court of justice, unless court fee in respect thereof is paid.

    The institution of a suit appeal or presentation of a document would not a legal institution or presentation if the fee charged under the act is not paid at the time of such institution or presentation.

    5. Section 149 CPC exceptions to that General Rule
    Section 149 of CPC provides an exception to that general rule by conferring discretion to the court to allow the party to make good the deficit court-fee at any stage at the proceedings.

    i. Deficiency may be making up in respect of whole of whole or any part of prescribed fee
    This section empowers the court to allow the party to remove the deficiency of his document regarding court fee either wholly or completely deficient, then the court may allow to remove the deficiency wholly or completely.

    ii. Reasonable time allowed
    Where the court is of the view that the court-fee stamps are insufficient, it should determine the correct fee payable and allows reasonable time to party for making up the deficiency.

    iii. Allowing further time
    The Court may allow further time for making up the deficiency.

    iv. Extension to time allowed U/Sec 148
    The court ay enlarge such time from time to time u /sec 148, and this being within the discretion of court, the plaintiff cannot as a matter of right claim extension of time.

    v. when time is usually Extended
    Time is usually extended
    i. Where there has been a bona fide mistake or honest doubt in the calculation of the fee payable, or
    ii. Where the situation was beyond the control of the party; or
    iii. Where the court has committed a mistake in calculating the fee or
    iv. Where the court-fee stamps are unavailable.

    vi. When time should not extended
    i. time should not extended where the party is guilty of negligence, or
    ii. Where act of party is malafide.
    iii. When a suit has been deliberately undervalued.

    vii. Time for making up Deficiency
    Section 149 empowers court to allow the party to makeup the deficiency at any stage, even after the expiry of period of limitation which has been prescribed for filling of suit or document or after the lapse of period originally fixed as well as in appeal and even by an executing court.

    viii. Discretion of Court
    The powers granted u/sec 149 CPC are discretionary with the court and no right can be claimed under these provisions. Discretion should be exercised in favour of a person who acts in good faith, but may be refused where limitation has expires due to his own conduct. [PLD 1981 S.C. 489]

    ix. Case where court is bound to give time
    where plaint is insufficiently stamped by the plaintiff under order VII rule 11 of C.P.C , the court is bound is give time to the plaintiff for making up the deficiency.

    i. Deficiency is made up in the time allowed
    Where the deficiency is made up in the time allowed, the suit will be deemed to have been instituted on the date, the plaint was presented.

    ii. Where Deficiency is not made up in the time allowed
    Under order VII rule 11 of CPC if despite of given time to plaintiff is make up deficiency with that time, he does not do so , the court may reject his plaint.

    iii. Rejection of plaint amounts to decree
    By virtue of section 2(2) of CPC and order rejecting a plaint, whether under order VII or not, is a decree.

    x. Effect of Section 149
    Section 149 CPC will effect retrospectively. It means that if the deficiency was made up by the party in the time allowed by the court, it would amount as court fee had been paid in the first instance.

    6. Conclusion

    To conclude, I can say that section 149 of CPC is an exception to the General rule to time or levying court fees on documents. The object of section 149 CPC is to remove the misconception that the court fee Act is meant is arm the litigant with the weapon of technicality against his opponent. Under this section, the court has discretionary power to allow the party to make up the deficiency regarding court. Fee in the time allowed by them. This section does not extend the period of limitation prescribed for filing of suit but only extend the period for making up the deficiency in the court fee, if the was instituted during period of limitation.
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    Item Reviewed: Deficiency in Court Fee Rating: 5 Reviewed By: Usman Ali
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