Director vs Raghunath Giri & Another
2025 Latest Caselaw 3204 Ori

Orissa High Court

Director vs Raghunath Giri & Another on 7 August, 2025

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 L.A.A. No.58 of 2016

            Director, Interim Test Range,           ...              Appellant
            Chandipur, Balasore

                                              Mr. S.K. Samantaray, CGC
                                       -versus-
            Raghunath Giri & Another                ...          Respondents

                                               Mr. M.K. Panda, Advocate
                                CORAM:
                     JUSTICE SANJAY KUMAR MISHRA

                                      ORDER

Order No. 07.08.2025

05. This matter is taken up through hybrid mode.

2. As per the office note, valuation of appeal memo and court fee payable on appeal has not been correctly furnished. Hence, S.R. could not be made. That apart no I.A. under Section 149 of CPC for extension of time has been filed till date.

3. This Court, in Land Acquisition Officer Vs. Sambaru Bariha, reported in AIR 1994 Orissa 90, vide paragraph Nos.2, 5, 6, 10, 11 and 12, held as follows:

"2. It may first be stated with respect that the learned single Judge is right in his observation that Section 149 of the Code is an exception to the general rule of paying court-fee at the time of filing of a document as enjoined by Section 4 of the Court- fees Act, 1875. It is apparent that an exception cannot be made a rule. Any other view would amount to amending Section 149 of the Code, because, instead of discretion resting with the Court in the matter of allowing payment of the deficit court-fee, it would be open to a litigant to claim this benefit almost as a matter of right, whereas Section 149 gives power to grant time on the Court being satisfied on a case being made out for the same.

5. Despite the above, we would observe that when Section 149 has not put any fetter on the exercise of discretion, it may not be permissible to do so by laying any guideline as such. All that can justifiably be said is that the Court while exercising the discretion has to bear in mind that the power conferred is meant to be exercised in exceptional case and on being satisfied that non-payment of court-fee in time is for reason beyond the control of the appellant and the same is not due to his negligence. The ground shown has therefore to be adequate, cogent and strong, because, otherwise the exception would take the form of rule which would militate against the legislative intention.

6. With the aforesaid in mind, we answer the three questions framed by the learned single Judge. In so far as the first question is concerned, we state that the fact of non-receipt of the amount (by an advocate) required for purchase of court-fee cannot ordinarily be a "good cause" for extension of time, because in such a case non-receipt is not a 'cause'; it is really an effect. The cause lies somewhere else. It is the soundness of the cause basing on which discretionary power has to be invoked to come to the aid of a litigant. It may be a 'cause' for the advocate (Advocate-General in the present case); but the Advocate-General is not the appellant. Appellant is the State and the Advocate- general is an agent of the State within the meaning of Order III of the Code. The cause which has, however, to exist is not one which is relatable as to why the agent is being required to file the appeal with deficit court-fee but why the principal could not make available the required amount to the agent. The cause of the agent cannot be the cause for the principal; and it is the cause of the principal which is relevant, and not the cause at the hand of the agent. In an exceptional case it may however be that though the principal has sent the amount, the same has not reached the hands of the agent, say due to postal strike, natural calamity or the like. In such cases, cause of non-receipt of the amount by the agent may also provide good ground; but not when the required amount had not been remitted at all to the agent. In such a case the appellant shall have to satisfy the court as to why the entire amount could not be made available by him/it to his/its counsel to enable the latter to file the appeal with the required amount of court-fee.

10. Thus, by the time decision is taken to file appeal, expiry of limitation might be round the comer. Prudence would require to file appeals within time without taking the risk of asking for condonation, which may or may not be granted depending upon the facts and circumstances of the case. But than, question Is, if decision to file appeal has been taken

within the period of limitation, why should the money iequired for payment of court-fee be not made available? Here comes the question of budgeting. As is known, each department is allotted some fund as per the budget passed by the legislature. It may be that by the time appeal is required to be filed, the budgetary provision is getting exhausted and the financial powers available to the concerned head does not permit drawing of other money, even if available under some other head. In some cases, it may as well be that the position of finance is no such that the same cannot be apportioned at any level till additional fund is made available by supplementary budget.

11. In view of what has been stated above, we would state that when State asks for time to pay the deficit court-fee, a simple statement like the one at hand that the amount required has not been received from the concerned authority is not sufficient at all to invoke the discretionary power conferred by Section 149 of the Code. Adequate reason(s) must be assigned to the court to show that the appeal is being filed with deficit court-fee because of circumstances beyond the control of the concerned department. If negligence lies at the root of the same, the court may well refuse to invoke its discretionary power.

12. The third question would be relevant only in appeals under Section 54 of the Land Acquisition Act, which, according to us cannot be treated differently from other appeals. The fact that the claimant shall be paid interest in case of delayed disposal has no relevance to the question of exercise of discretionary power under Section 149 of the Code, inter alia, because public money cannot be allowed to be used to benefit a private person, if by due diligence the same can be avoided. A respondent in a case under Section 54 of the Land Acquisition Act may not be felt aggrieved at the delay in disposal of the appeal because he would be compensated by payment of interest. But the larger public interest would suffer where the State is the appellant inasmuch as the money which would have been available to the State, if interest would not have been required to be paid because of delay in disposal, could have been put to better use and more pressing public use. So, the fact that the claimant would be paid interest is, to repeat, not a relevant consideration while seized with the question of exercising discretionary power under Section 149 of the Code."

(Emphasis supplied)

4. Despite granting time vide orders dated 14.07.2025 and 30.07.2025, defects are yet to be removed. However,

this Court is not inclined to grant further time to remove the defects.

5. Accordingly, the LAA stands dismissed for non- removal of defects and non-payment of court fees.

6. Mr. Panda, learned counsel for the Respondents submits, in view of dismissal of the Appeal, a direction be given to the Appellant for implementation of the impugned judgment within a stipulated period.

7. In view of such submission made, the Appellant is directed to implement the impugned judgment within a period of three months hence.

(S.K. Mishra) Judge

amit

Location: HIGH COURT OF ORISSA, CUTTACK