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Dhansingh Vs. Takhatsingh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular 2nd Appeal No. 36 of 1978
Judge
Reported in1978WLN(UC)208
AppellantDhansingh
RespondentTakhatsingh and anr.
DispositionAppal allowed
Excerpt:
.....drawn is that the deficiency in court-lee was made good on august 23, 1976.;the learned additional civil judge, udaipur, was not right in maintaining the order of rejection of the plaint under order vii rule 11, civil procedure code.;appeal allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not..........learned district judge, udipur. the appeal was transfixed for disposal to the court of additional civil judge, udaipur, who dismissed it by his judgment dated august 27, 1977. being aggrieved by the judgment of the learned additional civil judge, dated august 27, 1977, the plaintiff' appellant have come up in appeal before this court.4. learned counsel for the respondents did not dispute the fact? mentioned above leading to this appeal. he has further not disputed that the deficit court fee of rs. 10/- was made good on august 23, 1976 as according to him it is amply borne out from the note put by shri govind lal daugi advocate on august 23, 1976 & the report of the clerk concerned of the same date that deficiency in the court, for has been made up.5. the following substantial question.....
Judgment:

S.K. Mal Lodha, J.

1. This is plaintiff's second appeal directed against the judgment and decree of the Additional Civil Judge, Udaipur, dated August 27, 1977 by which he affirmed the order of rejection of plaint under Order VII Rule 11, CPU, passed by Munsif, Salumbar, on August 31, 1976.

2. The facts giving rise to this appeal may be briefly noticed. Dhan-Singh plaintiff appellant engaged Shri Govind Lal Dangi as his advocate in the trial court. The suit was fir the recovery of Rs, 3250/-. Shri Dangi Advocate presented the above suit in the court of Munsif Salumbar on August 14, 1976 on court-fee stamps of Rs. 200/-. According to the report made by the office of the Munif Court on August 16, 1976, the court-fee was de6cit by Rs. 10/. On August 16, 1976 it was ordered be the Munsif that the counsel for the plaintiff may be asked to mike up the deficiency within a week The advocate of the plaintiff affixed a Court-fee stamp of Rs. 10/- on the plaint on August 23, 1976 and wrote a note in his handwriting or the margin that. Below this, he put his own signature and the date as August 23, 1976. It is admitted on behalf of the plaintiff-appellant that formerly, learned advocate Shri Dingi wrote 26-8-1976 below the signature but at that very time, the figure of date 26 was changed to 23. In other words, the figure of 6 in the date below the signature was changed to 23. After the making up of the deficiency in court-fee on August 23, 1976, the clerk concerned reported of the same day that the deficiency in the court fee has been made up & the suit may be registered as Civil Original He also put the date after this writing. The report nude by the concerned clerk after making up of the deficiency rum as under:

deh iwfrZ gqbZA ntZ jftLVj bDrokbZ nhokuh ntZ gksdj is'k gksA 23&8&76 bZ

This report of the concerned clerk was signed by the Munsif on August 27, 1976. Subsequently, learned Advocate Shri Dangi received a notice from the court of Munsif Salumbar on August 28, 1976 informing him that August 31, 1976 has been fixed as the date of hearing regarding deficiency in court-fee On August 31, 1976, the said advocate submitted this he had already made up the deficiency in Court fee on August 23, 1976 and that the same is clearly borne out from the note to that effect written by the clerk concerned. The learned Munsif did not accept the submission made on behalf of the plaintiff that the deficiency in court fee was made good on August 23, 1976 and consequently, rejected the plaint under Order VII Rule 11, CPC, vide his order dated August 31. 1976, the date fixed for making up the deficiency. He was of the opinion that the deficiency was not made up on August 23, 1976, but it was made good on on August 26, 1976.

3. Being dissatisfied with the order of rejection of plaint, the plaintiff went in appeal before the learned District Judge, Udipur. The appeal was transfixed for disposal to the court of Additional Civil Judge, Udaipur, who dismissed it by his judgment dated August 27, 1977. Being aggrieved by the judgment of the learned Additional Civil Judge, dated August 27, 1977, the plaintiff' appellant have come up in appeal before this court.

4. Learned Counsel for the respondents did not dispute the fact? mentioned above leading to this appeal. He has further not disputed that the deficit court fee of Rs. 10/- was made good on August 23, 1976 as according to him it is amply borne out from the note put by Shri Govind Lal Daugi Advocate on August 23, 1976 & the report of the clerk concerned of the same date that deficiency in the court, for has been made up.

5. The following substantial question of law was framed:

Whether the learned Additional Civil Judge was right in maintaining the order of ejection of plaint under Order VII Rule 11, CPC inter alia by placing reliance on the opinion expressed by the learned District Judge, Udaipur, in an enquiry against the clerk Shri Bhagwatilal of the Munsif Magistrate, Salumbar and without giving any opportunity to the appellant for substantiating the plea that the deficiency in court-fee was made good on August 23, 1976?

Learned Additional Civil Judge his repelled the following contentions raised on behalf of the appellant before him.

1. That deficit court-fee was made good on August 23, 1976 and not on August 26, 1976 as found by the Munsif Salumbar,

2. That the deficit court-fee was made good on being required by the court,

3. That the deficiency in court-fee had already been made good before the order of rejection dated August 31, 1976 and as such it will be presumed that the court has extended the time.

It appears from the judgment of the learned Additional Civil Judge that he was considerably influenced by the opinion expressed by the learned District judge, Udaipur in an inquiry against the clerk Shri Bhigwatilal of the Munsif Magistrate, Salumbar. It may be recalled here that he was the clerk who made the report on August 23, 1976 that deficiency in the court-fee has been made up and the suit maybe registered as Civil Original In my opinion, the learned Additional Civil judge committed a serious error of law in placing reliance on the opinion expressed by the learned District Judge, Udaipur in an enquiry against the said clerk. This could not form basis for earning to the conclusion that deficit court-fee was not made good on August 23, 1976. Besides this, if he wanted to rely on the opinion expressed by the learned District judge, Udaipur, against Sari Bhagwatilal, it was all the more necessary for him to afford reasonable opp rtunity to the appellant regarding his plea to the deficit court-fee of Rs. 10/- was made good on August 23, 1976 The opinion expressed by the learned District Judge, Udaipur which has been relied upon by the learned Additional Civil Judge in the order under appeal has not been placed on record by any of the parties and therefore, one does not know what that opinion is and under what circumstances that opinion was ex-pressed. He even did not examine the creak Shri Bhagwatilal before using the opinion expressed against him by the learned District Judge, Udaipur. The judge Trent under appeal, which is principally cased on the opinion expressed by the learned District Judge in an enquiry against the clerk Shri Bhagwatilal, is unsustainable.

6. Learned Munsif has drawn a separate order sheet dated August 27, 1976 pertaining to the allegation regarding making up of the deficiency in the court fee. The case of the plaintiff appellant was that the deficit court fee was made good on August 23, 1976 but this version was doubted by the Munsif because of the fact that there was an over writing in the date below the signature of the advocate when he wrote a note that deficiency has been made up. Since the deficiency in court-fee of Rs. 10/- was made good on August 23, 1976 the clerk made the endorsement on the same date as stated above. In these circumstances, no order could be passed rejecting the plaint on August 31 1976 without holding any enquiry in the matter. The plaintiff-appellant should have been given reasonable opportunity for substantiating the plea that the deficiency court fee was made good on August 23, 1976. I would have reminded the case for enquiry in this regard but in view of the fact that the mentioned above leading to this appeal have not been disputed by the learned Counsel for the respondents, it is not necessary to remand the case. According to the admitted facts, Shri Govind Las Dangi Advocate affixed the court stamp of Rs. 10/- on the plaint on August 23, 1976 and put a note I his own hand in the margin that deficiency was made up on August 23, 1976. Below this note he his signature and the date. As instead of 23, the date was placed as 26, it was changed to 23 by over writing on the figure 6. It is further admitted that the clerk concerned reported on the same day i.e. on August 23, 1976 that the deficiency in court-fee has been made up and the suit be registered as civil original. The date put by the clerk concerned is August 23, 1976. In view of these admitted facts the only conclusion that can de drawn is that the deficiency in court-fee was made good on August 23, 1976 la the absence of and material, the courts below erred in law in holding that there was any collusion between Shri Govind Lal Dangi Advocate for the appellant and the clerk concerned Shri Bhagwati Lal. In these circumstances it is not necessary for me to examine in detail the reasons given by the learned Additional Civil Judge for holding that deficiency was not made good on August 23, 1976.

7. For the reasons mentioned above, the learned Additional Civil Judge, Udaipur, was not right in maintaining the order of rejection of the plaint under Order VII Rule 11, Civil Procedure Code, by placing reliance on the opinion expressed by the learned District Judge, Udaipur, in an enquiry against the clerk Shri Bhagwatilal, of the Minsif, Salumbar & without giving any opportunity to the plaintiff appellant for substantiating their plea that the deficient in court-fee was made good on August 23, 1976, I, therefore, hold on the basis of the admitted facts, that deficiency in court-fee was made good on August 23, 1976.

8. The result is that the appeal is allowed and the judgment and decree passed by the learned Additional Civil Judge, Udaipur, dated August 27. 1977 affirming the order of the learned Munsif, Salumbar dated August 31, 1976, rejecting the plaint under Order VII Rule 11, CPC, are set aside. The case is remanded to the trial court, namely, Munsif Salumbar, with a direction to register the suit if there is no other defect except that of the court-fee on the basis of which the plaint was rejected, and to take further proceedings in accordance with law. In the circumstances of the case, I leave the parties to bear their own costs of this appeal.


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