1. This is a plaintiff's application for revision of an order dated 17-1-1957 passed by the Third Civil Judge, Akola, ecpowered under Section 18 of the C.P. Courts Act, dismissing his suit as barred by time.
2. The applicant filed a plaint in which he claimed a decree for Rs. 600/- but paid only a court-fee stamp of Rs. 1/-. He made an application along with the plaint for extension of time to pay the deficit court-fee stating therein that as court-fee stamps of the appropriate value were not available on that date and as that was the last day of limitation for the filing of the plaint he was paying a court-fee of Rs. 1/- and wanted an extension of time to pay the deficit. The Court granted him time till 23-6-1956. The applicant paid deficit court-fee on 21-6-1956. Later the defendant made an application for review of the order in which he challenged the correctness of the averment made by the applicant to the effect that court-fee stamps of appropriate denomination were not available on the date on which he presented his plaint. The learned Judge upheld the contention of the non-applicant and held that the application for extension of time was not made bona fide. Upon this view, he held that the suit was not within time on the day the deficiency was made good and dismissed it as barred by time. The learned Judge relied in support of his decision on the view taken in Revasiddappa Appa v. Shankar Appa, ILR 1938 Nag 359 : AIR 1937 NAG 87 . In that case it was held by Pollock J. that if a plaintiff obtains under Section 149 of the civil Procedure Code an extension of time for the payment of the deficit court-fees on a false representation, behind the back of the defendant, the Court granting the extension is entitled to review the order on the general principles that fraud vitiates consent and that no party should be prejudiced by an order made ;behind his back. The case before Pollock J. was similar to the present and it seems to have been his view that in a case where extension of time is granted the Court can exercise its power under Section 149 of the Civil Procedure Code only.However, a different view has been taken in Achut Ramchandra Pai v. Nagappa, : AIR1914Bom249 . That is a Division Bench decision and is binding on me. IN that case a memorandum of appeal was presented on an insufficiently stamped paper. The appellant stated that he had no money with which to pay the requisite stamp and sought item from the Court to make necessary payment. The District Judge refused to grant time and rejected the memorandum of appeal/ The High Court held that the District Judge was bound to grant time within which to supply the requisite stamp. Batchelor J. who delivered the judgment of the Court has observed:
'There can be no doubt, we think, that if the document presented had been a plaint and not a memorandum of appel, the learned Judge's order of rejection would have unsustainable. That appears to follow from the terms of Order VII, Rule 11(c) which provides for the case of presentation of a plaint written upon paper insufficiently stamped, and the provision of the law is that such a plaint shall be rejected only in the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so. In the case of an insufficiently stamped plaint, therefore, it is clear that provided the insufficiently stamped paper be presented within the time allowed by the law of limitation the appellant (sic) is entitled as of right to demand form the Court that some further time, to be fixed according to the Court's discretion shall be allowed to him in order that he may make up the deficiency in the stamp.'
Dealing with the argument advanced before the learned Judges that the view taken by hem was in conflict with Section 149 of the Civil Procedure Code, the learned Judge observed at page 45 (of ILR Bom) : (at p. 250 of AIR):
'That section, however, is, as we read it, a general provision empowering the Court to extend the time for the payment of fees on any and all documents which may be presented to it. But when a particular document is a plaint or memorandum of appeal, then the Court's discretion must be exercised in accordance with the special provisions of Order VII, Rule 11(c). Thereafter Section 149 would come into play, and would operate to produce this effect, that upon the payment of the requisite fee within the time allowed by the Court, the document in respect of which such fee was payable would have the same force and effect as if such fee had been paid in the first instance.'
The view taken in this case has been followed in Radha Kanta v. Debendra Narayan ILR Cal 880 : AIR 1922 Cal 506 ; Subba Reddi v. Venkatanarasimha Reddi 71 Mad LJ 804 : AIR 1937 Mad 266 ; Ram Sawari Kuer v. Motiraj Kuer : AIR1939Pat83 ; Narasimha Rao v. Venkata Krishna Rao, 1932 Mad WN 104 ; Husain Ali Khan v. Ambika Prasad . The same view has also been taken in Venkanna v. Achutaramanna AIR 1938 Mad 542 ; Apparao v. Mt. Bhagubai, and 27 Cal WN 566 : AIR 1922 Cal 506 . However this decision has been expressly dissented from in Vertannes v. R.G.B. Lawson, ILR Rang 50 : AIR 1935 Rang 336 ; Goreylal v. Dayashankar, ILR 1941 Nag 467 : AIR 1941 Nag 220; Brijbhushan v. Tota Ram : AIR1929All75 ; Jnanadasundari Shaha v. Madhabchandra Mala : AIR1932Cal482 ; Narayana Rao v. Seshamma, 27 Mad LJ 677: AIR 1915 Mad 426 ; Mukarram Khan v. Hardit Singh AIR 1941 Pesh 69 . In Shiva Charan v. Behari Lal, AIR 1941 Oudh 30 , it has been held that the proper provision under which time may be granted or extended is Section 149 and not Order 7, Rule 11 which only states the various circumstances in which a plaint shall be rejected, one of them being the failure to supply the requisite stamp within a time to be fixed by the Court, that is, to be fixed by the Court if and when it exercises its discretionary power under Section 149 in favour of the plaintiff. As pointed out in that case, Rule 11 of Order 7 is not an enabling provision but a disabling one and the authority to grant time lies in Section 149 which gives a discretion either to grant or to refuse time.
3. With great respect to the learned Judges who decided Achut Ramachandra Pai's case (B) (cit sup.) there is a good deal to be said in favour of the view taken in the Oudh case and certain other cases. However, as already stated I am bound by the decision of this Court and must accordingly hold that the Court was bound to grant time to the plaintiff to pay deficit court-fee.
4. Since it was bound to grant time and it did in fact grant time there was no question of reviewing the order in that light even assuming that the reasons given by the applicant for not paying the requisite court-fee at the time of filing the plaint were incorrect.
5. The application for revision is accordingly allowed. I, however, make no order as to costs in this Court.
6. Application allowed.