Charles Arnold White, Kt., C.J.
1. I do not think we ought to interfere with an established practice in this Presidency unless we are fully satisfied that the practice is contrary to law. In this case, on the facts stated in the Order of Reference, I am not so satisfied.
2. The plaint presented to the Small Cause Court is the same plaint as that which was presented to the City Civil Court and returned by that court under Order VII, Rule 10, of the first schedule to the Code of Civil Procedure. The amount actually paid on the plaint is an amount which satisfies the requirements of Sections 71 and 75 of the Presidency Small Cause Courts Act, 1882, and the notifications under the latter section. No doubt the stamp on the plaint when it was presented to the City Civil Court was cancelled by the City Civil Court in pursuance of Section 30 of the Court-fees Act, because the court purported to 'act upon' it by returning it. But I do not find anything in the Court-fees Act which compels me to hold that the plaint when presented to the Small Cause Court was unstamped quoad the cancelled stamp. The analogy of the cancelled postage suggested by In re. Bai Amrit I.L.R. (1884) B. 387 does not seem to me to be in point. If it were, it might be pointed out that the postal regulations do not require a new stamp when a letter is re-addressed and re-delivered. The provision in Section 28 of the Court-fees Act that no document which ought to bear a stamp under that Act shall be of any validity unless it is properly stamped, affords us no assistance on the question whether, on the facts stated, the plaint was properly stamped when presented to the Small Cause Court. The provision in the same section that when a document is amended in order to correct a mistake a fresh stamp is not necessary - no doubt on the 'expressio unius' principle - lends some support to the conclusion that the document in question in the present case was not properly stamped. The same observation may apply to the last paragraph of Section 19-A and Section 40(3) of the Presidency Small Cause Courts Act. But, as pointed out in the Order of Reference, 'where the transfer of the suit or the re-presentation of the plaint is to the High Court on the Original Side there may be a special need for a specific provision as regards the deduction of the fee already paid as the system of charging court-fees is essentially different under the Rules of Practice applicable to the Original Side.' Sections 20 and 21 of the old Code of Civil Procedure, as the Order of Reference points out, have not been reproduced in the present Code.
3. The observation of the Full Bench' of the Bombay High Court in Prabhakar Bhat v. Vishwambar Pundit I.L.R. (1884) B. 313 'where a court-fee on the institution of a suit has been paid in a court which cannot possibly afford the relief sought, it does not seem consistent with sound principle that the plaintiff should be condemned to lose the fee thus paid, or that he should not be allowed to ask without paying a second fee for an adjudication from a court which cm really give one,' is no doubt obiter, but, in the absence of express statutory provision the other way, I am prepared to apply it to the facts of the present case. In so doing I am upholding what is admittedly the settled practice in this Presidency and what would seem to be, though I have no information as to this, the settled practice in Bombay.
4. I would answer the question in the affirmative.
5. I agree that the question whether the Small Cause Court is bound to give credit for the fee. levied by the City Civil Court should be answered in the affirmative. I think this result can be deduced from Order VII, Rule 10, of the Civil Procedure Code of 1908, which lays down that the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. If the plaints as returned, is not a document which the court to which it is to be presented is bound to receive as it stands - assuming the same scale of court-fees is in vogue in both courts - I am unable to find any sufficient reason for the enactment of the rule. The return of the plaint does not by itself save limitation. So far as limitation is concerned the plaintiff would be in the same position if he tore up the plaint which had been returned to him and drew up an I presented a fresh one; for whether the original plaint is presented or a fresh one, the plaintiff, if he wishes to call in aid Section 14 of the Limitation Act, must show that he comes within its' terms. I do not think that a court, when returning a plaint under this rule, can be said to be acting upon it within the meaning of Section 30 of the Court Fees Act. It is conceivable that the fact that the court had no jurisdiction to entertain the plaint might be noticed before anything was done to the stamps. In such a case the plaint could, and should, be returned without cancelling the stamps. A plaintiff who had acted bona fide should not be in a worse position because the court did not find out its want of jurisdiction before the stamps were cancelled, and, as the rule for the return of plaints makes no distinction between cases where the plaintiff has acted bona fide and cases where he has acted otherwise, the same principle is clearly meant to apply in all cases.
Sankaran Nair, J.
6. A plaint was presented to the City Civil Court on the aist January 1910 written upon a stamped paper of the value of Rs. 75. The stamp was cancelled by an officer of the court on 22nd January 1910.
7. The Judge of the City Civil Court was of opinion that the suit should have been instituted in the Small Cause Court and returned it on the 22nd February for presentation to that court. The same plaint was presented to the Small Cause Court with the stamp of Rs. 75 which had been already cancelled and further adhesive stamps for Rs. 9-12-0 which were required to make up the fee of Rs. 84-12-0 chargeable on the plaint in the Small Cause Court under Section 71 of the Presidency Small Cause Courts Act. The learned Chief Judge of the Small Cause Court, Mr. Justice Ayling with some hesitation, and Mr. Justice Krishnasawmi Aiyar are of opinion that the 75 Rs. stamp having been rightly cancelled when the plaint was first presented to the City Civil Court has lost its force and the plaint when presented to the Small Cause Court must be taken to bear only a stamp of Rs. 9-12-0.
8. Section 71 of the Presidency Small Cause Courts Act provides that an ad valorem fee shall be paid on the plaint in every suit and that no plaint shall be received until such fee has been paid, Section 28 of the Court-fees Act also states that no document requiring a stamp under that Act shall be of any validity unless it is properly stamped. If therfore the plaint, when presented to the Small Cause Court, bears, in law, only a stamp of Rs. 9-12-0 the plaint cannot be received or acted upon.
9. The question referred to the Full Bench for decision is whether the stamp cancelled has lost its force in the circumstances above stated and whether the plaint must again be stamped with a stamp of equal value. I am clearly of opinion that the plaintiff need not affix the stamp again to his plaint.
10. There is no difference between this case and similar cases in the mofussil courts where plaints are returned by one court for presentation to the proper court. There was a doubt entertained for some time under the old Code of Civil Procedure whether a plaint should not be returned before it was filed; or whether it might be returned at any stage of the suit. The Bombay and the Madras High Courts took the latter view which has been embodied in Order VII, Rule 10, of the present Code of Civil Procedure, that the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been first instituted. The return of a plaint for presentation to a proper court is to enable the plaintiff to present that document without paying the stamp over again. It was on the ground that 'where a court-fee on the institution of a suit has been paid in a court which cannot possibly afford the relief sought it does not seem consistent with sound principle that the plaintiff should be condemned to lose the fee thus paid or that he should not be allowed to ask without paying a second fee for an adjudication from a court which can really give one,' that it was held by the Full Bench of the Bombay High Court that a plaint might be returned at any stage of a suit to enable the plaintiff to present the same plaint without paying over again that fee to the proper court Prabhakar Bhat v. Vishwambhar Pundit I.L.R. (1884) B. 313. Order VII, Rule 10, of the Code of Civil Procedure, 1908, now embodies that rule and it would be thus defeating the very object of the Legislature in directing the return of a plaint to levy the fee over again when it is again presented.
11. The decision of the Bombay High Court was passed in 1884 and the practice in the Bombay Presidency may be presumed to be in accordance with that decision. In this Presidency it has been the practice to accept the original1 stamp in the second court to which the plaint is presented. The Legislature has not interfered with that decision or the practice. It has obviously accepted this, view.
12. Section 14 of the Madras City Civil Courts Act and Sections 19-A and 40 of the Presidency Small Cause Courts Act provide that credit shall be given to the plaintiff in cases of return of plaints to be presented to the High Court for the court-fee paid in such court. This was apparently due to the doubt raised by the system of the court-fees levied on the Original Side of the High Court being different in principle from the Court-fees Act. Sections 20 and 21 of the Civil Procedure Code of 1882, not reproduced in the present code, enact a similar provision. But they deal with the re-institution of the suit, and this may have created some doubt-These provisions certainly indicate the tendency of legislation and, taken with the omission to deal with the cases under consideration, with the prevailing practice and the Full Bench decision of the Bombay High Court before the legislature, can lead only to one conclusion.
13. It is then said that a stamp which has been defaced and cancelled by proper authority has lost its force and cannot be used again. There is, it appears to me, a fallacy in this argument. It loses sight of the fact that a document does not cease any the less to be a properly stamped document by the cancellation of the stamp. It continues to be properly stamped. By cancellation the stamp cannot be used again, but when the same document, which was the plaint in one court, is rightly presented in another court as a plaint in another court, the stamp is not being used again. It is only the same document that is being used in another court; otherwise, it might with equal force be argued that a plaint with its stamp cancelled when filed as an exhibit in another case, must be stamped again.
14. I am further of opinion that the cancellation in such cases must be taken to be set aside by reason of 'the subsequent order returning the plaint. Section 30 of the Court-fees Act runs thus:
No document requiring a stamp under this Act shall be filed or acted upon in any proceeding in any court or office until the stamp has been cancelled.
Such officer, as the court or the head of the office may from-time to time appoint, shall, on receiving such document, forthwith effect such cancellation by punching out the figurehead so as to leave the amount designated on the stamp untouched, and the part removed by punching shall be burnt or otherwise destroyed.
15. In the course of the argument I was inclined to think that under the 2nd clause of this section, the court-fee stamp on a plaint has to be canceled on its presentation. This does not appear to be so. Under Section 48 of the Code of Civil Procedure of 1882, the plaint has to be presented to the court or to such officer as may be appointed to receive it. Section 57 provided that, if on the presentation of a plaint it appears that the court has no jurisdication to try the cause, the plaint shall be returned to be presented to the proper court. The first clause of Section 30 of the Court-fees Act only requires that the stamp shall be cancelled before the document is filed or acted upon. It does not require the cancellation on presentation. The 2nd clause only requires the officer appointed on that behalf, who will be a different person from the judge himself or who may be a different person from the one appointed to receive plaints, to cancel the stamps when - as I read the clause - he receives it for that purpose, preliminary to its being filed or acted upon. The obvious intention and what these sections lay down is that, when a plaint is received, and before it is acted upon or filed, the judge has to decide whether it has been presented to the proper court and according to his opinion return it for that purpose or otherwise give it to the proper officer for cancellation before it is acted upon or filed. He may act upon it without filing it by rejecting it for certain reasons, for instance if the plaintiff fails to supply within a given time the requisite stamp paper to meet the deficiency, if any. In these cases he may file a new suit but not present the same plaint. When the court at a later stage or the appellate court directs the return of a plaint, it is only doing what the court of first instance, should have done before the cancellation of the stamp. The important alteration in the present Civil Procedure Code allowing the return of the plaint at any stage only strengthens the argument, as already pointed out. It was enacted to enable the courts to do at any stage of the suit what should properly be done on presentation of the plaint before it is acted on or filed. It does not affect the interpretation of Section 30 of the Court-fees Act. The final order returning the plaint, even if passed only in second appeal, therefore relates back to a stage of a suit before it is acted upon or filed, as a preliminary to which alone the stamp has to be cancelled under Section 30 of the Court-fees Act. The final decision directing the return is an order that the court should not have acted on or filed the plaint. It follows therefrom that the cancellation of the stamp was unnecessary under Section 30 of the Court-fees Act. The plaintiff is in such cases relegated by the order to the position he would occupy if the plaint had been returned before having been acted upon. A court which has no jurisdiction to entertain a plaint ought to return it immediately. It cannot act upon it, though it may be necessary to make an enquiry to decide the question of jurisdiction. This is not acting upon it but only deciding whether it should act upon it. A party is not to be prejudiced if possible by an act of court afterwards found improper; and cancellation is therefore of no greater effect than the other proceedings including decrees which may have been passed before the final order was passed to return the plaint.
16. I therefore answer the question whether the Small Cause Court is 'bound to give credit for the fee levied by the City Civil Court' in the affirmative.