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Beni Prasad Vs. Om Prakash and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All497
AppellantBeni Prasad
RespondentOm Prakash and anr.
Excerpt:
.....a week. if the deficiency in court-fee is not made good, his claim shall be struck off and this preliminary decree shall be considered as cancelled. as the plaintiff did not make good the deficiency in the court-fee within the time fixed by the court, the preliminary decree became null and void and no final decree can be prepared on the basis thereof. 5. this matter was the subject of argument before the lower court and on 22nd august 1932, the learned civil judge held that as the plaintiff had failed to make the deposit within the seven days allowed by the preliminary decree, the plaintiff's suit then failed and the preliminary decree became a nullity. sheo narain vaish was not the judge who passed the decree, he could only therefore deal with the matters mentioned in rule 2. if it..........additional objection on 19fch may 1932, printed on p. 14, which sets out that:in the preliminary decree, dated 30th april 1928, the plaintiff was ordered that he should make up the deficiency in the court-fee within a week and that if that wag not done the plaint would be deemed to have been dismissed and the decree would be treated as set aside. as the plaintiff did not make good the deficiency in the court-fee within the time fixed by the court, the preliminary decree became null and void and no final decree can be prepared on the basis thereof.5. this matter was the subject of argument before the lower court and on 22nd august 1932, the learned civil judge held that as the plaintiff had failed to make the deposit within the seven days allowed by the preliminary decree, the.....
Judgment:

Bennet, J.

1. This is a first appeal by the plaintiff under the following circumstances: The plaintiff obtained a preliminary decree for dissolution of partnership and accounts and the date of the judgment on p. 9 is 30th April 1928. The plaintiff asked for the relief that the plaintiff be declared entitled to one-half of an amount in deposit in a Court and the valuation of the suit was Rs. 51,000 and the court-fee paid was Rs. 10 for the declaration mentioned and Rs. 75 for a declaration that the partner, ship had ceased to exist. An objection was taken in the written statement of the defendants that the court-fee paid was insufficient and this formed the subject of Issue 2. The plaintiff must have been aware therefore from the date of filing the written statement in 1927 that this matter of the court-fee would arise in the case and after arguments the Court held on p. 7 that the plaint was insufficiently stamped and an ad valorem court-fee was required on Rs. 51,000. The order in the judgment on page 9 stated:

The plaintiff shall make good the deficiency of court-fee within a week. On his failure to do so his plaint shall be rejected and this preliminary decree shall be a nullity.

2. This judgment was pronounced and signed by Mr. Shamsul Hasan, First Subordinate Judge, on 30th April 1928, presumably in the presence of counsel for the parties as directed by Order 20, Rule 3. That Rule provides as follows:

The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review.

3. Now apparently Mr. Shamsul Hasan was absent from Court for some days and Mr. Sheo Narain Vaish who was a Munsif in the District was in charge of whatever duties he could perform in the Court of the Subordinate Judge. On 5th May 1928 the plaintiff made an application, printed on p. 11, stating, no doubt, that the suit was decided on 30th April 1928 but omitting to mention that there was an order in the judgment that the court-fee was to be paid within one week, otherwise the plaint would be rejected and the preliminary decree should be a nullity. The application merely stated that:

The plaintiff was ordered to pay additional' court-fee. As the amount of the court-fee is considerable, sufficient time may be allowed to make arrangements for the payment of the same. The time of one week is quite short,

and 15 days were asked. There is a note, presumably of the munsarim, that the court-fee was Rs. 1200 and Rs. 85 have been paid and the deficiency was Rs. 1115. No notice was issued of this application as the officer-in-charge considered that it was probably a routine matter and he wrote an order on 7th May 1928 : 'Time extended up to 12th May.' The court-fee was paid in this extended period. The fact that this officer was not a Subordinate Judge is shown by the preliminary decree on p. 10 which he signed 'Sheo Narain Vaish for First Subordinate Judge.' That decree was actually signed on 16th May. It bears the date of the judgment 30th April 1928 and states:

The plaintiff is to make good the deficiency in-court-fee within a week. If the deficiency in court-fee is not made good, his claim shall be struck off and this preliminary decree shall be considered as cancelled.

4. After this an appeal was made by Om Prakash, one of the defendants, against whom the preliminary decree was passed, the other defendant being Tirloki Nath Prakash. The first two defendants were exempted from the claim. Om Prakash filed an appeal in the High Court and the plaintiff filed cross-objection. On page 12 there is a copy of the decree of the High Court dated 16th November 1931 in which it is stated that the appeal and the cross-objection of the plaintiff are dismissed. After the dismissal of the appeal on some date not specified the plaintiff made an application for the preparation of a final decree, and certain proceedings were taken. The defendants then made an objection and Tirloki Nath made an additional objection on 19fch May 1932, printed on p. 14, which sets out that:

In the preliminary decree, dated 30th April 1928, the plaintiff was ordered that he should make up the deficiency in the court-fee within a week and that if that wag not done the plaint would be deemed to have been dismissed and the decree would be treated as set aside. As the plaintiff did not make good the deficiency in the court-fee within the time fixed by the Court, the preliminary decree became null and void and no final decree can be prepared on the basis thereof.

5. This matter was the subject of argument before the lower Court and on 22nd August 1932, the learned Civil Judge held that as the plaintiff had failed to make the deposit within the seven days allowed by the preliminary decree, the plaintiff's suit then failed and the preliminary decree became a nullity. This appeal has been brought against that decree and various grounds have been urged that the Court below was incorrect. One of the points on which argument has been made is in regard to the capacity of Mr. Sheo Narain Vaish to extend the period. Now the Bengal, Agra and Assam Civil Courts Act, 1887, Section 11, allows that if a Subordinate Judge is incapacitated for the performance of his duties, or is absent,

the District Judge may transfer all or any of the proceedings pending in the Court of the Subordinate Judge either to his own Court or to any Court under his administrative control competent to dispose of them.

6. Now, the manner of signature on p. 10 indicates that Mr. Sheo Narain Vaish was merely directed to dispose of whatever routine papers he could dispose of. He is a Munsif and it is not shown that he was appointed as officiating Subordinate Judge and if he had been so appointed, he would have signed as such and not with the words 'for First Subordinate Judge.' Now, this was a suit the valuation of which was Rs. 51,000 and therefore only a Subordinate Judge had jurisdiction. As a Munsif in charge of the routine duties of a Subordinate Judge, Mr. Sheo Narain Vaish had no jurisdiction whatever to pass any order of extension. This is a first defect to be noted in the order. In fairness to Mr. Sheo Narain Vaish, we must note that the matter was not brought to his notice that he was asked to alter a decree, otherwise he would not have purported to make the order which he did. Learned Counsel for the appellant urges that the order may have been passed under Section 148 or Section 149 of the Civil P.C. These sections provide as follows:

148. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

149. 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.

7. Now, Section 148 uses the expression 'from time to time' and Section 149 uses the expression 'at any stage.' Both these expressions indicate that to act under those sections the Court must have a case before it in regard to which it has jurisdiction. Now, the jurisdiction of a Civil Court in regard to an original suit begins from the date when the plaint is filed and it terminates on the date on which the judgment is dated and signed in open Court under Order 20, Rule 3, that is, its jurisdiction terminates so far as the decision of any question between the parties which is decided in the decree. The preliminary decree in this suit for dissolution of partnership comes within the definition of decree in Section 2, Sub-section (2) which states that the decree may be either preliminary or final. Learned Counsel has dwelt on the fact that after the judgment is pronounced a period follows during which the decree is prepared and the decree is then signed on some later date and that it was in this interval before the decree was signed that the order was made for extension of the period. But the language of Order 20, Rule 3 is imperative and it states that when the judgment is once signed, it shall not afterwards be altered or added to, save as provided by Section 152 or on review. Moreover Rule 6, Order 20 states that the decree shall agree with the judgment and therefore in this period after pronouncing the judgment and before signing the decree the Court has no jurisdiction to alter anything which it has decided in its judgment other than in accordance with Order 20, Rule 3. We may note that under Rule 7 the date which the decree bears is the date on which the judgment was pronounced. In the present case also the decree did follow the judgment and the extended period which had been allowed by the order of 7th May does not appear in the decree.

8. Now the provision in Order 20, Rule 3 is that the judgment shall only be altered as provided in Section 152 or on review. Section 152 provides for clerical or arithmetical mistakes in the judgment or decree and it is not contended that the alteration in this period comes under this description. When we turn to the order dealing with review - Order 47 - we find that Rule 2 provides that an application for review of a decree or order of a Court upon some ground other than the discovery of such new and important matter or evidence as is referred to in Rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree shall be made only to the Judge who passed the decree or made the order sought to be reviewed. Now, as Mr. Sheo Narain Vaish was not the Judge who passed the decree, he could only therefore deal with the matters mentioned in Rule 2. If it be argued that this case would come under the words 'new and important matter' meaning that the client discovered that he was not able to pay the money within one week, then the new and important matter referred to in Rule 2 involves that that matter was not within his knowledge when the decree was passed and we consider that the plaintiff must have been well aware when the decree was passed that he would find it difficult to find money within one week. Moreover the form of application was not for review of judgment and if it had been for review of judgment, notice must issue to the opposite party and a proper court-fee stamp must be affixed on the application. The application of 5th May bore a court-fee stamp of eight annas and no notice was issued and it did not purport to be for review of judgment.

9. Now, learned Counsel has argued that on account of the appeal by one of the defendants, Om Prakash, to this Court the decree of the trial Court merged in the decree of the High Court. Even on this view, the decree of the High Court has not altered the decree of the trial Court and the decree of the trial Court stands to the effect that the deficiency in court-fee must be made good within a week. If learned Counsel intends to argue that the period of one week is to be taken from 16th day of November 1931, the date of the decree of this Court, and that the payment was made prior to that date, then we must point out that as held in Ghanshiam Lal v. Ram Narain (1909) 31 All. 379 the time provided in any decree must be computed from the date of the decree unless the time is extended by the Court of Appeal. It was open, no doubt, to the plaintiff in his cross-objection to ask that the Appellate Court should enlarge the time allowed; but if he did make such an application, it was certainly not allowed as the cross-objection was dismissed. Instead of taking this regular method of getting the time extended, the plaintiff chose to apply in a miscellaneous manner without giving notice to the opposite party and he applied to an officer who had no jurisdiction in the suit. Having adopted this irregular method, the plaintiff has no one to blame but himself for the result that the decree is a nullity. Some argument has been made by learned Counsel on the use of the words 'his plaint shall be rejected' in the order made in the judgment on p. 9, line 42. There is no doubt that the order 'his plaint shall be rejected' is merely a slip by the learned Judge as the rejection of the plaint under Order 7, Rule 11 is a matter prior to the issue of notice to a defendant and after the issue of notice to the defendant the correct word to use is dismissal of the suit and not rejection of the plaint. The word 'rejection' of the plaint does not appear in the decree of the lower Court and our translation states 'his claim shall be struck off and this preliminary decree shall be considered cancelled.'

10. Now certain rulings have been referred to by learned Counsel. One of these is Mt. Vaishno Ditti v. Mt. Rameshri . In that suit the plaintiff sued to establish her right to a quarter share in certain property and her suit was decreed but dismissed on appeal by a Judicial Commissioner and the decree of the District Judge was restored by an order of their Lordships of the Privy Council. The plaintiff then took out proceedings in execution. The District Judge directed a commissioner to take accounts and report. The commissioner reported that the plaintiff's share of rents and profits, etc. was a certain sum. The plaintiff-appellant therefore was directed to pay up a further sum of court-fee; but the Court did not make any order fixing the amount and limiting the time for payment. Without doing so, the Court purporting to act under Section 11, Court-fees Act, dismissed the suit for default of payment of the additional court-fee and this order was upheld by the Judicial Commissioner. Their Lordships of the Privy Council held that without fixing the time or the amount it was improper to dismiss the suit on such a ground. We do not think that this case has any bearing on the present case. In the case before their Lordships, the additional court-fee became necessary in the execution proceedings and it was not held that the Court had jurisdiction to enlarge the period under Section 148 or Section 149. The matter how. ever in the present case is different because there was a decree and that decree prescribed a certain period with a certain result. In Suranjan Singh v. Ram Bahal Lal (1913) 35 All. 582 this Court laid down that in the case of a preemption decree, Section 148, Civil P.C., could not apply to alter the period and in the ruling reference was made to the terms of the decree provided in Order 20, Rule 14. Now although that ruling was for pre-emption decrees, the ruling went on the basis of the form of decree and in the present case the form of decree is precisely similar to that there was a certain period named within which the deficiency of court-fee should be made good and if it was not made good, then the suit was to be dismissed. We consider that the principle of this ruling would apply. In Sajjadi Begam v. Dilawar Husain (1918) 5 A.I.R. All. 98 a Bench of this Court held that where a date was fixed in the decree for paying in money and in case of non-payment the suit was to be dismissed, the Court had no jurisdiction to interfere with the decree by extending the time under Section 148, Civil P.C. This was a case of insufficient court-fee and we see no distinction between that case and the present case. The Full Bench ruling, Suranjan Singh v. Ram Bahal Lal (1913) 35 All. 582 was applied. In Kandhya Singh v. Mt. Kundan (1920) 7 A.I.R. All. 173, in a suit for possession of the property by setting aside alienations, the decree provided that possession should be awarded on condition of the plaintiff depositing a sum of money within one month. Four days before the expiry of the period, the Court passed an order extending the period by one month and the Court altered its judgment and decree accordingly. In revision this Court held that the order extending the time fixed by the decree was beyond the jurisdiction of the Court and that Section 148 or Section 151 or Order 34, Rule 8 or Order 47 did not justify this matter.

11. Learned Counsel for appellant also referred to Fitzholmes v. Bank of Upper India Ltd. . The actual facts of that case are not fully stated, but from p. 256 where it is stated that the judgment of the High Court, though in form, it affirms the decree of the Judge of first instance, actually works out at a different figure, because the amount of interest is not the same, and this indicates that the High Court did enhance the decree of the trial Court by decreeing a larger amount of interest. In that case it was held that the rule laid down in 6 Pat 247 should apply, that ruling being that an application for a final decree under Order 34, Rule 5(2) must be made in a period of time which runs from the date of the decree of the Appellate Court and not from the expiry of the time for payment fixed by the preliminary decree. These two rulings of the Privy Council in Jowad Hussain v. Gendan Singh (1926) 13 A.I.R. P.C. 93 and Fitzholmes v. Bank of Upper India Ltd. were relied on by learned Counsel for a proposition that the judgment of the trial Court had merged in the judgment of the Appellate Court. But even on this view the judgment of the Appellate Court did not extend the period of time and therefore no benefit would accrue. The case of those two rulings was for the preparation of a final mortgage decree and the period within which an application should be made for the preparation of a final mortgage decree, and that was substantially different from the matter before us.

12. Another argument for the appellant is that the defendant, Om Prakash, in making his appeal to this Court should have raised the point that the plaintiff had failed to carry out the decree of the trial Court. But when an appellant goes to an Appellate Court, he makes his appeal against the decree of the trial Court and not against the failure of the opposite party to carry out that decree subsequently. There was no legal obligation on the defendant-appellant, Om Prakash, to raise this point in the Court of Appeal and no result can follow against his interest on account of his not raising this point. It was in fact the duty of the plaintiff to apply in his cross-objection for an extension of the period within which he should be allowed to pay the court-fee.

13. Another point which was urged for the appellant was that there should be some period of limitation within which the defendant should make the objection in the Court below which he has made. Now the objection of the defendant is that the decree is a nullity owing to the failure of the plaintiff to carry out the condition imposed by the decree. We do not consider that there is any limitation of time for raising a point of this nature. All that has happened is that when the plaintiff has applied to carry out the decree which he alleges in his favour, the defendant points out that the decree is not in favour of the plaintiff owing to his own default. For these reasons, we dismiss this first appeal with costs. On behalf of Tirloki Nath Prakash it is pointed out that he alone has printed the documents which have been printed as Nos. 11 to 15 in this appeal and that the other respondent, Om Prakash, has not printed any document. Therefore this Court will in its decree specify that the costs of printing will be granted to Tirloki Nath Prakash and also the fee for his counsel and to Om Prakash will be granted the fee for his counsel according to the certificates filed but not beyond the legal fee. On behalf of Om Prakash no certificate has been filed and on behalf of Tirloki Nath Prakash certificates have been filed.


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