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Venkataramayya and ors. Vs. Krishnayya - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1897)ILR20Mad319
AppellantVenkataramayya and ors.
RespondentKrishnayya
Cases ReferredJainti Prasad v. Bachu Singh I.L.R.
Excerpt:
court fees act - act vii of 1870, sections 6, 28--civil procedure code--act xiv of 1882, section 54--presentation of plant improperly stamped. - - in the present case, on the contrary, that is precisely the contention which must be raised, and it clearly is not admissible, because a transaction ab initio void cannot he validated......the 29th march 1893, and subsequently within the time fixed by the court presented again with a proper stamp, can be said to have been duly presented within the time limited by the act of limitation. according to the 4th [section 4: subject to the provisions contained in sections five to twenty-five (inclusive) dismissal of suits &c., every suit instituted, appeal presented, and application made instituted &c., after period after the period of limitation prescribed therefor by the second of limitation. schedule hereto annexed shall be dismissed, although limitation has not been set up as a defence.explanation.--a suit is instituted in ordinary cases when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper.....
Judgment:

Shephard, J.

1. The question is whether the plaint, having been presented with an insufficient Court-fee stamp on the last day allowed by the law of limitation, viz., the 29th March 1893, and subsequently within the time fixed by the Court presented again with a proper stamp, can be said to have been duly presented within the time limited by the Act of Limitation. According to the 4th

[Section 4: Subject to the provisions contained in sections five to twenty-five (inclusive)

Dismissal of suits &c., every suit instituted, appeal presented, and application made

instituted &c., after period after the period of limitation prescribed therefor by the second

of limitation. schedule hereto annexed shall be dismissed, although limitation

has not been set up as a defence.

Explanation.--A suit is instituted in ordinary cases when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is filed; and in the case of a claim against a company which is being wound up by the Court when the claimant first sends in his claim to the official liquidator.]

I.L.R. AIL 129

2. The case of Skinner v. Orde I.L.R. All. 241 is relied upon in this as in other cases as containing a dictum of the Judicial Committee in favour of the view advocated by the respondent's Vakil. Skinner v. Orde I.L.R. All. 241 is however easily distinguishable from the present ease. There the petition as originally presented by the plaintiff was complete and valid and only required the order of the Court under Section 308 of the Code then in force to make it fully efficacious as a plaint. After the filing of the petition the plaintiff acquired the means requisite for paying the Court fee, and accordingly the proper stamp was affixed. The question was whether the plaintiff was, as regards the date of the presenting of his plaint, to be placed on the footing on which he could have been, had the order above mentioned been made, or whether the plaint should have been rejected altogether. There was no question, in that case, of validating a plaint which was, in its inception, invalid. In the present case, on the contrary, that is precisely the contention which must be raised, and it clearly is not admissible, because a transaction ab initio void cannot he validated.

3. I have already given reasons for holding that the plaint as presented was of no legal force or effect whatever. I agree with the decision in Jainti Prasad v. Bachu Singh I.L.R. 15 All. 65. I reverse the decree of the District Judge and restore that of the District Munsif with costs.

Davies, J.

I entirely concur.


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