§ Section 149, CPC 1908

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 payment 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.

§ Three features of the power

• It applies to any document for which a court fee is prescribed: a plaint, a memorandum of appeal, an application, or any other paper on which fee is payable under the Court-fees Act, 1870 or the corresponding State legislation.

• At any stage. The words are wide. The deficiency may be made good at the trial, in appeal, or even later, and the power is not confined to the moment of presentation.

• The effect is retrospective. On payment, the document is treated as if the fee had been paid in the first instance, which is the provision that does the real work.

§ The consequence for limitation

Because the document takes effect as if the fee had been paid in the first instance, it is treated as having been properly presented on the date it was actually presented, not on the date the deficiency was made good.

The practical consequence is that a plaint filed within the period of limitation, but short-stamped, and later completed, is saved. Limitation is tested against the original date of presentation.

Without the section, the position would be otherwise: the plaint would be treated as filed only when properly stamped, and a claim filed on the last day of limitation would fail because of a shortfall in stamp duty.

The reverse case. Where the plaint was already time-barred when presented, making good the fee does not help, since the retrospective effect carries the document back only to its own presentation, which was itself too late.

The deficiency arose from a bona fide mistake in calculating the fee, or from a disputed valuation

The discretion is ordinarily exercised in the applicant's favour, since no advantage was sought

The applicant was unable to pay the full fee at the time, and applies promptly

Ordinarily allowed, on terms as to time; Section 148 may be used to enlarge the time fixed

The short payment was deliberate, made to gain time or to await developments in a related matter

Ordinarily refused; the section is not a device for filing a claim cheaply and deciding later whether to pursue it

The applicant did not comply with an earlier order to make good the deficiency

Weighs heavily against him, and Order VII Rule 11(b) or (c) may then require rejection

Delay, and prejudice to the defendant

Relevant to the exercise of discretion, and may lead to terms as to costs

§ How the two provisions work together

Order VII Rule 11(b) requires the court to reject a plaint where the relief claimed is undervalued, and the plaintiff, on being required to correct the valuation within a time fixed, fails to do so.

Order VII Rule 11(c) requires rejection where the relief is properly valued but the plaint is written on insufficiently stamped paper, and the plaintiff, on being required to supply the requisite stamp-paper within a time fixed, fails to do so.

The structure is the same in both clauses, and it is important. Rejection is not the first step. The plaintiff must first be required to correct the defect within a time fixed, and only on his failure is the plaint rejected.

Section 149 is the power that gives that opportunity, and it extends further: it allows the deficiency to be made good at any stage, including after the stage at which Rule 11 would have operated.

The two provisions therefore pull in the same direction. The Code prefers a claim to be decided on its merits rather than lost on a question of stamp duty, provided the plaintiff acted bona fide and corrects the defect when required.