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In Re: Chunduru Venkata Subrahmaniyam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberS.R. No. 6170 of 1954
Judge
Reported inAIR1955AP74
ActsCode of Civil Procedure (CPC), 1908 - Order 7, Rule 11 - Order 33, Rule 11 - Sections 2(2) and 14
AppellantIn Re: Chunduru Venkata Subrahmaniyam
Appellant AdvocateA. Sambasiva Rao, Adv.
Respondent AdvocateGovt. Pleader
Excerpt:
.....no longer a pauer'.the appellant failed to pay, and, therefore, entitled the court to dismiss the appeal for default in payment'.the other learned judge, venkataramana rao j. , in my opinionm need not be confined only to default of appearance, but may include other defaults as well and certainly this default. and, therefore, it was clearly decree within the meaning of the civil p. the order in the later full bench decisioin was clearly an order rejecting a plaint and, therefore directly fell within the definition. (c) where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped and the plaintiff does not make good the deficiency within the time, if any, granted by the court; rule 9 enables the court to dis pauper the plaintiff if the condtiions..........in respect of the same cause of action. order 9 rr. 2 and 3 prescribe the procedure for dismissing suits for default of appearance. rules 4 and 5 enable the filing of a fresh suuit. order 33 prescribes the procedure for filing suis in forma pauperis and for recovering the court-fee due to government in such suuits. rules 1 to 7 provide for the hearing of an application to sue in forma pauperis. rule 8 says that if an application is granted it shall be numbered and registered and shall be deemed to be the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner. rule 9 enables the court to dis pauper the plaintiff if the condtiions laid down under that rule are satisfied. rule 11, which is the material rule reads:'where the plaintiff.....
Judgment:

Subba Rao, C.J.

(1) Rajagopala Iyengal, J. of the Madras High Court placed the papers in the above matter before the Chief Justice of that Court for constituting a Full Bench as the learner Judge felt that there was a conflict between the two Full Bench decisions in -- 'Kayambu Pillai, In re', AIR 1941 Mad 836 (FB) (A) and -- 'Satyanarayanacharyulu v. Ramalingam', AIr 1952 Mad 86 (FB) (B). After the constitution of the Andhra High Court, the case was transferred to this Court and the Full Bench was accordingly constituted.

(2) The petitioner filed a suit in the Court of the Subordinate Judges, Tenali, in forma pauperis' for recovery of possession of the plaint schedule properties and for mesne profits. The suit was valued at Rs.9443-12-0 for purposes of court-fee and jurisdiction, and a court-fee of Rs.632-7-0 was payable thereon. At first, an application for leave to sue in forma pauperis was granted and the suit was numbered as O. S. No. 40 of 1951. Subsequently, he was dispaupered, as it was discovered that he had sufficient means to pay court-fee. On 7-12-1952, the Subordinate Judge directed him to pay the court-fee payable on the plaint. As the petitioner did not pay the court-fee within, the time given he dismissed the suit with costs. The petitioner filed the Civil Revision, Petition against the decision of the Subordiante Judge. The question is whether, in the circumstances, an appeal would lie against the order of the Subordinate Judge. If an appeal would life, the revision filed would obviously be not maintainable.

(3) At this stage, the scope of the two Full Bench decisions may conveniently be considered. The facts in, -- 'In Re: Kayambu Pillai (A)' are: the petitioner there filed an appeal in forma paupris. Subsequently, he was dispaupered and the Court directed him to pay the appropriate court-fee on the Memorandum of appeal and also to furnish security for the costs of the respondent within a prescribed time. On failure to comply with the order of the Court, the appeal was dismissed. When an appeal was filed against that order, the Full Bench held that an order dismissing an appeal for non-compliance with an order requiring security for costs is not a 'decree' within the meaning of the word as defined a S. 2(2), Civil P. C. The learned Judges further held that an order dismissing an appeal for non-payment of the required court-fee is an order dismissing an appeal for default and is also not a 'decree' within the meaning of the definitiion in S. 2(2) of the Code. Leach C. J., gave two reasons for holding that the order in that case did not come under the definitionof 'decree'. At p. 837 the learned Chief Justice stated as follows:

'It (decree) does not include two kinds of orders, namely (i) an adjudication from which an appeal lies as an appeal from an order, and (ii) an order of dismissal for default. What was the order of 4-3-1938, but an order dismissing the appeal for default? The appeal had been admitted in forma pauperis, but on it becoming apparent that the appellant was not a pauper, the Court in effect said 'you shall not proceed unless you pay the proper court-fee as you are no longer a pauer'. The appellant failed to pay, and, therefore, entitled the Court to dismiss the appeal for default in payment'.

The other learned Judge, Venkataramana Rao J. states to the same effect at p. 838 as follows:

'The next question is whether the Order in so far as it purports to be an order of dismissal for non-compliance in regard to payment of the court-fee is a decree. I agree with my Lord that it is an order of dismissal for default within the meaning of S. 2(2), Civil P. C., and, therefore, is not a decree. The Order, though it purports to be one for non-compliance with an order for payment of the court-fee, is strictly an order for non-compliance with an order passed in consequence of an order of dispaupering made under O. 33, R. 9. The word 'default' in s. 2(2)(b), Civil P. C., in my opinionm need not be confined only to default of appearance, but may include other defaults as well and certainly this default.'

(4) A scrutiny of the reason of Leach C. J., discloses that the Full bench held that the Order in question, being one rejecting an appeal, was not an order rejecting a plaint and, therefore, did not come within the definitioinof 'decree'. They further held that it would be an order of dismissal for default, which was expressly excluded form the definition of 'decree'.

(5) The other Full Bench decision -- 'Satyanarayanacharyulu v. Ramalingam (B)' dealt with a different question. The learned Judges held that an order directing the payment of additional court-fee in a plaint isnot open to revision by the High Court, once the order has been followed up by a further order rejecting the plaint on the ground that the additional court-fee demanded has not been paid and that the proper remedy fo the aggrieved plaintiff is to appeal from the orderof rejection of the plaint. The Order in that case rejecting the plaint was made under O. 7, R. 12, Civil P. C. and, therefore, it was clearly decree within the meaning of the Civil P. C. Indeed, it was not contended before the Full Bench that no appeal lay against that Order. The only question that arose for consideration was whether after such a final order was made, a Revisiion was maintainable against an earlier Order directing the payment of additional court-fee and the Full Bench held that the proper remedy was to file an appeal against the final order.

(6) There is really no conflict between the views expressed by the two Full Bench decisions of the Madras High Court. The Order in the earlier Full Bench decision rejecting the appeal was not an order rejecting a plaint and, therefore, it was not a decree as defined. The Order in the later Full bench decisioin was clearly an order rejecting a plaint and, therefore directly fell within the definition. Eve rthe second ground of the deciison in the earlier Full bench, namely, that an order of dismissal purusant to the dispauperting of an appellant is an order of dismissal for default was not in conflict with any view expressed in the later Full bench decision. In the one, the order was made under O. 33, R. 11, Civil P. C. whereas in the other, the order was made under O. 7, R. 12, Civil P. C. The two Full Bench decisions, therefore, considered two different questions and, in my view, there was not and could not be any conflict between them.

(7) Now, I shall plroceed to consider the question raised on its merits. The appealability of an order, where no explress provision is made in the Civil P. c. or in any other statute, would depend upon the question whether the said order is a decree, within the meaning of the Civil P. C. Section 2(2), Civil P. C. which defines a decrees reads:

'Decree' means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 47 or S. 144, but shall not include.

(a) any adjudication from which an appeal lies as an appeal from anorder; or

(b) any order of dismissal for default.'

(8) The definition, therefore after defining 'decree' says that some orders are deemed to be decrees and expressly excludes other orders from the definition. It includes an order rejecting a plaint, but excludes an order of dismissal for defalt. The question is whether the order under consideration is an order rejecting a plasint, or an order of dismissal for defasult. If it is the former, an appeal would lie, and if it is the latter, a revision only is meaintainable. The Civil P. C. enumerates the following kinds of orders among others: return of a plaint, rejection of a plasint, dismissal of a plaint for default and dimsisal of a plaint on merits. Order 7, R. 1 says:

'The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed a under-valued and the plaintiff on being required by the court to coreect the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped and the plaintiff does not make good the deficiency within the time, if any, granted by the court;

(d) where the suit appears from the statement in the plaint to be barred by any law.'

(9) UnderR. 13, the rejection of the plaint on any of the grounds hereinbefore mentioned shasll not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Order 9 Rr. 2 and 3 prescribe the procedure for dismissing suits for default of appearance. Rules 4 and 5 enable the filing of a fresh suuit. Order 33 prescribes the procedure for filing suis in forma pauperis and for recovering the court-fee due to Government in such suuits. Rules 1 to 7 provide for the hearing of an application to sue in forma pauperis. Rule 8 says that if an application is granted it shall be numbered and registered and shall be deemed to be the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner. Rule 9 enables the court to dis pauper the plaintiff if the condtiions laid down under that rule are satisfied. Rule 11, which is the material rule reads:

'Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or where part of the claim is abandoned or where the suit is dismissed;

(a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff t pay the court-fee or postal charges, if any, chargeable for such service, or

(b) because the plaintiff does not appear when the suit is called on for hearing,

when the suit is called on for hearing,

the court shall order the plaintiff, or any person added as a coplaintiff to the suit, to pay the court-fee and in the case of abandonment of partof the claim the proportionate court-fee, which would have been payable by the plaintiff if he has not been permitted to sue as a pauper.

In cases where the plaintiff is dispaupered, the court may, instead of proceeding under the previous paragraph, order the plaintiff to pay the requisite court-fee within a time to be fixed by it, and in default dismiss the suit and make an order for the payment of the court-fee as in the previous paragraph.

'Where the court finds tht the suit has been instituted unreasonably or improperly by a next friend on behalf of a minor plaintiff, on a cause of action which accrued during the minority of such plaintiff, the court may order the next friend to personally pay the court-fee.'

(10) Under this rule in the three contingenices mentioned therein, the court shall order the plaintiff or any person to pay the court-fee due to the Government. When the plaintiff is dispaupered, a alternative procedure is prescribed. The courty may order the plaintiff to pay the court-fee within a time prescribed, and in default dismiss the suit and make an order for payment of court-fee. It will be noticed that under this rule, unlike under O. 7, R. 11, the court is empowered to dismiss the suit. There is an essential distinction and the Code maintains it throughout between the rejection of a plaint and the dismissal of a suiut. The rejection of a plaint takes away the basis of the suuit. It is, as it were than no suit was filed. But, in the case of a dismissal, the existence of the suit is recognised and its termination is indicated.

Why, it may be asked that Civil P. C. used different words under similar circumstances? When the Civil P. c. used different words with definite connotation, it is not open to a Court tyo probe into the legislative intention and give the same meaning to the different words, when there is no ambiguity. In the absence of any ambiguity, courts are bound to give full meaning to the words used by the Legislature. But the main distinction between O. 7, R. 11 and O. 33, R. 11 is apparent. In the case of an order under O. 7, R. 11, there is no provision for collecting the court-fee due to the Government for the simple reason tht the plaint wouldbe treated as if it was not filed at all, whereas in the case of dispaupering, an express provision is made enabling the Court to make an order for payment of court-fee. It may be for that very reason the authors of the rule designedly used the word 'dismissal' in contradistinction to the word 'rejection'. I would, therefore, hold that the order made under O. 33, R. 11 dismissing the suit is what it purorts to be. I cannot say, without doing violence to the language tht anorder of dismissal is an order of rejection.

(11) Reliance is placed by the learned Government Pleader in support of his contention that an order of dismissal in the said provision must be construed as one of rejection in -- 'Annapurna Dasai v. Sarat Chandra', AIR 1935 Cal 157 (1) (C), Jack and Khundkar JJ., held that where a suit is dismissed because proper court-fee has not been paid within the time allowed, that amounts to rejection of the plaint under O. 7, R. 11, Cls. (b) and (c) and, therefore, there is an appeal from that order. There the order was made under O. 7, R. 11 and instead of using the word 'rejected' the learned Judge by mistake used the word 'dismissed'. Indeed he had no jurisdiction to make an order of dismissal under that rule. The learned Judges, therefore, rightly construed that order an one of rejection, an order which the court could have made under the circumstances.

So too, Sarwate J., in -- 'Shamrao Janrao v. Amolak Chimnira'. AIR 1940 Nag 373 (D) ruled that though the suit has been dimissed for nonpayment of additional court-fee demanded, that order should nevertheless amount only to a rejection of the plaint. As the court had only jurisdiction to make an order of rejection under the circumstances, the learned Judge construed the order as one of rejection. Panchapakesa Ayyar J. in -- 'Bommisetty Ramayamma, In re', : AIR1954Mad880 (E) held that where after a petition for leave to sue as a pauper is rejected and the petitioner waits till time granted for paying the additional court-fee expires and the plaint is rejected, he cannot afterwards file a Revision Petition against the order rejecting his petition for leave to sue as a pauper, as his remedy then is only an appeal against the decree rejecting the plaint. The question whether an appeal lies against a final order was not considered in that case as the only question raised there was whether a revision would lie against an earlier order.

(12) The decision of a Division bench of the Madras High Court, of which I was a memberm, in - 'Venkatanarasimha v. Gangamma', : AIR1954Mad258 (F) was also relied upon. The question which now falls to be considered was neither raised nor decided in that case. The decisions cited, therefore, are not of any relevance to the question now under consideration.

(13) The next question is whether the order in this case is an order of dismissal for default within the meaning of S. 2 (2) (b), Civil P. C. Order 33, R. 11 itself gives a clear indication that an order made therein is one for default for the relevant part of the provision says that the court shall 'in default dismiss the suit'. The dismissal of the suit is, therefore, for default committed by the plaintiff. In -- 'Tafazzul v. Shah Mohammad', AIR 1949 All 261 (G), Seth J, held that the term 'default' in S. 2 (2), Civil P. C. is not limited to one of appearance only and it includes default of prosecution also. At p. 262, the learned Judge observes :

'The word 'default' is not qualified by any adjective and I fall to see why any words should be imported in the section so as to confine its operation to dismissals for default in appearance only. It is a well-recognised cannon of construction that it is the duty of the court to interpret a section as it exists without adding to it and without subtracting from it. It is only when a court can be certain that the language employed by the Legislature does not represent its avowed intention, if interpreted literally and grammatically that it can be justified in adding words to or taking out words from the language of the statute in interpreting it. Such is not the case with regard to the Legislature provision which requires interpretation in the present case. It has been held per Vendatramana Rao J., in a Full Bench of the Madras High Court in -- 'In re : Kayambu Pillai (A)' that the word 'default' in S. 2 (2) (b), Civil P. C. need not be confined to default of appearance, but may include other defaults as well.'

I respectfully agree with the aforesaid observations ans with the observations made by Venkataramana Rao J., in the Full Bench judgment already extracted in a different context. Under O. 33, R. 11, the Court dismisses a suit if the plaintiff fails to pay the court-fee within a prescribed time. The order is, therefore, made as the plaintiff makes a default in complying with the conditions laid down by the Court. The words 'any order of dismissal for default' in S. 2 (2) are certainly comprehensive enough to take in an order made under O. 33, R. 11. Section 2 deos not expressly or by necessary implication confine the scope of that clause only to a particluar kind of order for default. I would, therefore, hold that the order being one which is excluded from the definition of 'decree', no appeal lies against that order and that the petitioner has rightly filed the Revision Petition.

Order accordingly.


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