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Pt. Amba Shankar Vs. Mt. Seoti - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1937All280
AppellantPt. Amba Shankar
RespondentMt. Seoti
Excerpt:
- - it is, however, perfectly clear that, before an order can amount to such rejection as is contemplated by section 2(2), civil p. by my opinion, the language off order 7, rule 11(c) leaves no room for doubt that it contemplates cases in which court-fee on the plaint or on the memorandum, of appeal itself is not paid and that it has no application to a case like this in which, though the court-fee payable on the memorandum of appeal has been paid, but the plaintiff-appellant had not paid the court-fee payable on the plaint, having been allowed to sue as a pauper originally and his suit having been eventually dismissed on the merits......the rights of the parties with regard to all or any of the matters in controversy in the suit or appeal. 'rejection' of a plaint also amounts to a decree. it is argued that, in so far as the learned judge, rightly or wrongly, 'rejected' the memorandum of appeal on nonpayment of the court-fee payable in the trial court, the order amounts to a 'rejection' of the memorandum of appeal and is, therefore, a decree. it seems to me that the 'rejection,' referred to in the definition of decree, is such rejection as is permissible under the code of civil procedure. the entire scheme of the code leaves no doubt that two kinds of termination of a suit or appeal are contemplated. where a suit or appeal is tried and is disposed of on the merits, the court adjudicating on all or some of the.....
Judgment:
ORDER

Niamatullah, J.

1. This is an application for revision directed against an order, passed by the learned District Judge of Agra, purporting to reject the applicant's appeal to his Court in circumstances which are as. follows:

2. The applicant instituted a suit in forma pauperis in the Court of the Subordinate' Judge, Agra. The suit was dismissed on the merits, and the applicant became liable to pay a sum of Rs. 205 to the-Government under Order 33, Rule 11, Civil P.C. The sum included the court-fee-payable on the plaint and some other costs said to have been incurred by the Government, probably, in opposing the-application for leave to sue as a pauper. He preferred an appeal in the Court of the District Judge, and applied for leave to appeal as a pauper. His applications was dismissed and time was given to him for payment of the court-fee payable on the memorandum of appeal. The applicant paid the full court-fee due on appeal, and his appeal was registered. Three months later the District Judge received a communication from the Collector to the effect; that a sum of Rs. 205 was due to the Government in respect of the court-fee payable in the Court of the first instance-and certain costs which had not been, paid. The Collector requested the Judge to order the applicant to pay Rs. 205 as a prerequisite to the appeal being heard Reliance was placed upon Order 33, Rule 15, Civil P.C. which was expressly mentioned in the collector's letter. The District Judge expressed the opinion that Order 33, Rule 15, Civil P.C., was not applicable, but he had held that:

There is no impediment to my making an order for payment of this court-fee under Order 33, Rule 12, Civil P.C.

3. Accordingly the learned Judge directed the applicant to pay the sum demanded by the Collector within a certain time. This order was not complied with, and the appeal was dismissed. The applicant subsequently moved the District Judge to restore the appeal on condition of the sum of Rs. 205 being paid; but the District Judge, who had already dismissed the appeal, rejected this application. It is contended in revision that the order of the District Judge dismissing the appeal was without jurisdiction. Mr. Panna Lai for the opposite party has strenuously contended that, the appeal having been dismissed, the order amounts to a decree, as defined in Section 2(2), Civil P.C., and that an appeal was competent. He goes on to contend that, as the applicant could have preferred a second appeal, no revision under Section 115, Civil P.C., can lie. In my opinion, the order of the District Judge, dismissing the appeal in the circumstances already stated, does not amount to a decree' within the meaning of Section 2(2), Civil P.C. The disposal of a suit or an appeal amounts to a decree if there is an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit or appeal. 'Rejection' of a plaint also amounts to a decree. It is argued that, in so far as the learned Judge, rightly or wrongly, 'rejected' the memorandum of appeal on nonpayment of the court-fee payable in the trial Court, the order amounts to a 'rejection' of the memorandum of appeal and is, therefore, a decree. It seems to me that the 'rejection,' referred to in the definition of decree, is such rejection as is permissible under the Code of Civil Procedure. The entire scheme of the Code leaves no doubt that two kinds of termination of a suit or appeal are contemplated. Where a suit or appeal is tried and is disposed of on the merits, the Court adjudicating on all or some of the points in controversy, the disposal amounts to a decree. Secondly, in certain cases a suit or appeal may terminate without an adjudication of all or any of the controversies between the parties. Those cases are mentioned in Order 7, Rule 11, Civil P.C. It provides that a plaint shall be 'rejected,' inter alia, on the ground that the plaintiff, on being required by the Court to supply the requisite stamp paper I within a time to be fixed by the Court, fails to do so. There may possibly be other cases in which the Court is empowered to 'reject' a plaint so as to terminate the suit. If the plaint is 'rejected' on one of such grounds, the order rejecting the plaint is a decree as defined in the Civil Procedure Code. It is, however, perfectly clear that, before an order can amount to such rejection as is contemplated by Section 2(2), Civil P.C., it must be 'rejection' authorized by some provision of the Code of Civil Procedure. If the plaint is rejected for a cause for which the Coda-does not empower the Court to do so, it will not be a decree, as defined in the Civil Procedure Code, even though the Court may use the word 'reject' in disposing of the suit. What can be done by a Court of first instance in reference to a plaint may also be done by a Court of appeal as1 regards the memorandum of appeal. This is plainly the effect of Section 107, Civil P.C.

4. In this view, the important question to decide is whether it was open to the learned District Judge to reject the memorandum of appeal under Order 7, Rule 11, Civil P.C., for non-payment of the court-fees payable on the plaint. It is argued that Order 7, Rule 11, read with Section 107, Civil P.C., empowers a Court of appeal to call upon the plaintiff-appellant before it to pay the court-fee payable on the plaint, and if he fails to pay it within the time allowed by the Court, it may reject the appeal under Order 7, Rule 12, read with Section 107, Civil P.C. by my opinion, the language off Order 7, Rule 11(c) leaves no room for doubt that it contemplates cases in which court-fee on the plaint or on the memorandum, of appeal itself is not paid and that it has no application to a case like this in which, though the court-fee payable on the memorandum of appeal has been paid, but the plaintiff-appellant had not paid the court-fee payable on the plaint, having been allowed to sue as a pauper originally and his suit having been eventually dismissed on the merits. The memorandum of appeal in the present case cannot be said to have been written upon paper insufficiently stamped, because, as already stated the appellant had paid full court-fee in appeal.

5. The learned District Judge seems to have been of the opinion that he could enforce the right of the Government under Order 33, Rule 12, Civil P.C., to recover the court-fee payable on the plaint. In my opinion, this view is erroneous. It is not the function of a Court of appeal to give effect to the right of the Government conferred by Order 33, Rule 12, Civil P.C. It must on admission of the appeal, dispose of it in the manner laid down by Order 41, Civil P.C. Order 33, Rule 13 makes it clear that the Government should proceed in the trial Court for recovery of the court-fee to which its right has been declared by Rule 12. Any order which that Court may pass has been declared to be an order within the meaning of Section 47, Civil P.C. and is appealable as a decree. I am wholly unable to accept the view that the appellate Court can enforce the right of the Government in the matter of court-fee either by issuing a process or by directing the appellant to pay the court-fee on pain of his appeal being dismissed.

6. Learned Counsel for the opposite party referred me to Rup Singh v. Mukhraj Singh (1885) 7 All. 887 and similar other cases in support of his contention that, where a plaint is rejected for non-payment of court-fee, the order rejecting it is a 'decree.' In all these cases the plaint was rejected for one or the other of the causes mentioned in Order 7, Rule 11, Civil P.C. As already stated, where the Court rejects a plaint for one of the reasons for which rejection is prescribed by the Civil Procedure Code, the order is a 'decree.' Where the Court rejects a plaint or a memorandum of appeal for any other cause, very different considerations apply. In my opinion the order of the learned District Judge, impugned in this revision wholly without jurisdiction. The application is allowed, the order of the lower Court is set aside and the case is sent bank to that Court with the direction that the appeal be restored to its original number and disposed of according to law. The applicant shall have his costs of this revision from the opposite party.


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