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Achut Ramchandra Pai Vs. Nagappa Bab Balgya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 520 of 1912
Judge
Reported inAIR1914Bom249; (1913)15BOMLR902
AppellantAchut Ramchandra Pai
RespondentNagappa Bab Balgya
Excerpt:
.....must give time to pay up deficiency.;where an appeal is presented on an insufficiently stamped memorandum on the last day allowed by the law of limitation, the court must not reject the memorandum for want of stamp, but must allow the appellant to make up the deficiency in stamp, as provided in order vii, rule 11 (c), and section 107 of the civil procedure code, 1908. - - admittedly, before the present code was enacted, there was much divergence of opinion between the high courts of india upon this and cognate points, and it may well be that in this difference of judicial opinion the legislature thought well to adopt the principle that where the plaintiff or appellant was within time in the actual presentation of his plaint or memorandum of appeal, though matters could not..........therefore, the discretion of the court was fettered by this limitation that the insufficiently stamped memorandum of appeal could not be validated unless the judge was satisfied that the insufficiency arose from a mistake on the part of the appellant.6. turning now to section 149 of the present code, it will be seen that these words of limitation are omitted from it, and the inference appears to be that the legislature by the new provision intended that the court should have a free and unshackled discretion in this matter. there seems, therefore, to be no ground for the learned judge's view that the concession referred in section 149 must be restricted to cases where there was a bona fide misunderstanding of the law as to valuation.7. finally mr. sirur endeavoured to call in aid of.....
Judgment:

Batchelor, J.

1. The appellants before us were the plaintiffs in the original suit, and the trial Court made a decree against them. On the last day allowed by the law of limitation they filed their appeal in the District Court. The memorandum of appeal was, however, insufficiently stamped, and the plaintiffs' pleader on being questioned as to this replied that he had no funds with which to pay the requisite stamp, and requested that the Court would give him time within which to make the necessary payment. The District Judge refused to grant the time applied for, and rejected the memorandum of appeal.

2. The question before us is whether that was a right order. There can be no doubt, we think, that if the document presented had been a plaint and not a memorandum of appeal, the learned Judge's order of rejection would have been unsustainable. That appears to follow from the terms of Order VII, Rule 11(c) which provides for the case of the presentation of a plaint written upon paper insufficiently stamped, and the provision of the law is that such a plaint shall be rejected only if 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 is entitled as of right to demand from 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. In our opinion a memorandum of appeal stands on the same footing as a plaint for the present purposes. For Section 107, Sub-section 2, of the Code, which reproduces Section 582 of the old Code, provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. Moreover, unless the authority to reject such a memorandum of appeal as this is referred to Order VII, Rule 11 (c), there is not, so far as we are aware, any authority to which such action of the Court could be referred.

3. Mr. Sirur for the respondents has urged that the rejection of a memorandum of appeal should be attributed not to Order VII, Rule 11(c), but to Order XLI, Rule 3. It is true that this rule provides for the rejection of a memorandum of appeal in certain cases; but those cases are limited by the preceding rules to cases where the memorandum of appeal is defective in point of form or in respect of the grounds which it must contain, and this rule cannot, we think, be interpreted as covering a case where the memorandum of appeal is rejected by reason of insufficiency of stamp.

4. There is not, in our opinion, anything repugnant in this interpretation of the law. Admittedly, before the present Code was enacted, there was much divergence of opinion between the High Courts of India upon this and cognate points, and it may well be that in this difference of judicial opinion the Legislature thought well to adopt the principle that where the plaintiff or appellant was within time in the actual presentation of his plaint or memorandum of appeal, though matters could not then be carried further owing to the document being insufficiently stamped, yet the party should be entitled to some further time for the payment of Court-fees. It seems hardly necessary to observe that the obligation imposed by the law of limitation and the obligation to pay the requisite fees are matters which stand on a very different basis.

5. Then it was urged that this view of the law is in conflict with Section 149 of the Civil Procedure Code. 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 learned Judge below in considering Section 149 observed that it was intended ' solely for the purpose of enabling the Court to deal equitably with any bona fide misconstruction of the law as to valuation'. We are of opinion, however, that this is not the correct interpretation of Section 149. First, there are no words in the section to countenance or warrant such a limited construction of it. Then the section as it stands is a section which in the new Code was substituted for Section 582A of the old Code. Section 582A was apparently enacted with a view to remove what was considered to be the hardship caused by certain decisions of the Allahabad High Court, and that section provided for the validation of insufficiently stamped memoranda of appeals provided that they had been presented within the proper period of limitation and ' the insufficiency of the stamp was caused by a mistake on the part of the appellant as to the amount of the requisite stamp.' Under Section 582A, therefore, the discretion of the Court was fettered by this limitation that the insufficiently stamped memorandum of appeal could not be validated unless the Judge was satisfied that the insufficiency arose from a mistake on the part of the appellant.

6. Turning now to Section 149 of the present Code, it will be seen that these words of limitation are omitted from it, and the inference appears to be that the legislature by the new provision intended that the Court should have a free and unshackled discretion in this matter. There seems, therefore, to be no ground for the learned Judge's view that the concession referred in Section 149 must be restricted to cases where there was a bona fide misunderstanding of the law as to valuation.

7. Finally Mr. Sirur endeavoured to call in aid of his clients Sections 6, 28 and 30 of the Court-Fees Act, but these sections, in our opinion, have no application to the facts at present before us. For there is no question in this appeal of receiving, or filing, or exhibiting or acting upon an insufficiently stamped document as if it were sufficiently stamped, but of determining what, if any, opportunity the appellant can claim under the law for removing the objection on the score of the insufficiency of the stamp.

8. On these grounds we are of opinion that the order made by the learned Judge below must be set aside. We accordingly reverse it and remand the appeal to him to be decided in accordance with the foregoing observations and with the provisions of Section 149 and of Order VII, Rule 11(c), after the learned Judge shall have required the appellants to supply the requisite stamp paper within a time to be fixed by the District Court.

9. The appellants must have the costs of this appeal.


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