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Durairangam Pillai Vs. Govindarajulu Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1938Mad560; (1938)2MLJ135
AppellantDurairangam Pillai
RespondentGovindarajulu Naidu and anr.
Cases ReferredPriyanath v. Meajan
Excerpt:
- - 5. it follows from this section that when in circumstances like the present the deficient court-fee was paid and accepted by the court the document should have the same effect as if the court-fee had been paid in the first instance, that is, on the date when the plaint was first presented. the whole point is very clearly considered in mullah's commentaries on the code of civil procedure in point no......that the suit was barred by limitation.2. the lower court held that ramaswami pillai executed the suit promissory note and borrowed money thereunder from the plaintiff. it also held that the suit was not barred by limitation. we will first deal with the case on the merits and then deal with the question of limitation.3. [his lordship then discussed the evidence and held 'that the suit note is genuine, and it was executed by the deceased ramaswami pillai, father of the defendants'.]4. the next point for decision is whether the suit is barred by limitation. the facts relating to this point are as follows. the plaint was presented on 4th october, 1928, the last day of the period of limitation, with a one rupee stamp thereon. it was returned with an endorsement on 5th october, 1928, giving.....
Judgment:

Madhavan Nair, J.

1. Second defendant is the appellant. He is the surviving son of one Ramaswami Pillai who died in October, 1926. The plaintiff instituted a suit against the appellant and his brother for the recovery of a sum of Rs. 5,250 for principal and interest due on a promissory note dated 4th October, 1925, executed by their late father. The promissory note was for Rs. 3,750. The plaintiff's case is that the money was lent to Ramaswami Pillai and that the promissory note was executed by him at Tanjore between 8 and 9 A.M., on 4th October, 1925. The promissory note recites that the money was borrowed by the deceased for his contract business. The deceased was a P.W.D. and Abkari Contractor, on a large scale with his headquarters at Cuddalore in the South Arcot District. The appellant and his brother contended that the promissory note was a forgery, that their father had no necessity to borrow money and that the plaintiff had no means to lend the money. They also contended that the suit was barred by limitation.

2. The lower Court held that Ramaswami Pillai executed the suit promissory note and borrowed money thereunder from the plaintiff. It also held that the suit was not barred by limitation. We will first deal with the case on the merits and then deal with the question of limitation.

3. [His Lordship then discussed the evidence and held 'that the suit note is genuine, and it was executed by the deceased Ramaswami Pillai, father of the defendants'.]

4. The next point for decision is whether the suit is barred by limitation. The facts relating to this point are as follows. The plaint was presented on 4th October, 1928, the last day of the period of limitation, with a one rupee stamp thereon. It was returned with an endorsement on 5th October, 1928, giving two weeks' time for payment of the deficient court-fee. It was re-presented on 19th October, 1928, praying for a further two weeks' time to comply with the requirements. It was granted on 20th October, 1928, and the plaint was re-presented on 3rd November, 1928, paying the required court-fee. Full court-fee having been paid only on 3rd November, 1928, it is argued that in the circumstances the suit is barred by limitation. Order 7, Rule 11(c), Civil Procedure Code, suggests that the Court may admit a plaint though it is written on paper insufficiently stamped if the plaintiff on being required by the Court supplies the requisite stamp paper within the time allowed by it. That is what has been done in this case. Under the Code of 1882 there was a conflict of decisions on this point. This conflict has now been set at rest by the enactment in the new Code of Section 149 which runs as follows:

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.

5. It follows from this section that when in circumstances like the present the deficient court-fee was paid and accepted by the Court the document should have the same effect as if the court-fee had been paid in the first instance, that is, on the date when the plaint was first presented. This date was before the expiry of the period of limitation though it was on the last day of the period. We must therefore hold that the suit is not barred by limitation. The whole point is very clearly considered in Mullah's Commentaries on the Code of Civil Procedure in Point No. 3 under Clause (c) of Order 7, Rule 11, to which reference may be made in this connection. As in the circumstances of this case no question of limitation arises, the decision in Krishnasami Panikondar v. Ramasami Chetty (1917) 34 M.L.J. 63 : L.R. 45 IndAp 25 : I.L.R. 4 Mad. 412 (P.C.) relied on by the appellants' learned Counsel does not apply. We may also draw attention to the decision in Priyanath v. Meajan (1915) 24 C.L.J. 88 which says that discretion exercised by the Court below according permission for paying the deficient court-fee should not be interfered with by a Court of appeal. Reading Order 7, Rule 11 with Section 149 of the Code of Civil Procedure, it is clear that the contention that the suit is barred by limitation should be overruled.

6. For the above reasons the appeal fails on both the points argued before us and is dismissed with costs.


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