1. This is a suit for the cancellation of a sale-deed executed to the defendant by the plaintiff for Rs. 2,500. In this Court, on second appeal, a stamp duty for Rs. 150 was paid. On behalf of the respondent, the objection was raised that this Court could not entertain the appeal because in the Court of First Instance and in the lower Appellate Court a stamp duty of Rs. 10 only had been paid.
2. As regards the appeal to the lower Appellate Court the effect of Section 582A of the Code of Civil Procedure is to enable a defective memorandum of appeal to be retrospectively validated if the insufficiency of the stamp was caused by mistake on the part of the appellant. This section appears to have been introduced for the purpose of meeting a decision of a Full Bench of the Allahabad High Court--a decision which was dissented from by this Court in Chennappa v. Raghunatha I.L.R. 15 Mad. 29 and Patcha Saheb v. Sub-Collector of North Arcot I.L.R. 15 Mad. 78 to the effect that if a memorandum of appeal is not, when tendered, properly stamped, it is not at that time a memorandum of appeal, and the subsequent affixing of the proper stamp cannot have a retrospective effect so as to validate the original presentation unless it has been done by order of the Court, and the Court cannot make any such order unless the memorandum has been received, filed or used through mistake or inadvertence on the part of the Court or its officers Balkaran Rai v. Gobind Nath Tiwari I.L.R. 12 All. 129.
3. This section makes it clear that, at any rate as regards memoranda of appeals and applications for review, when the document is insufficiently stamped by reason of the mistake of the party, the defect may be afterwards made good and the document will be as valid as if it had been properly stamped in the first instance. The argument on behalf of the respondent was that, inasmuch as the Legislature in Section 582A had dealt expressly with insufficiently stamped memoranda of appeals without reference to insufficiently stamped plaints, the inference was that a defective plaint could not be subsequently validated so as to avoid the operation of the law of limitation. We do not think that such an inference ought to be drawn, The Allahabad decision only had reference to a defective memorandum of appeal and Section 582A was apparently intended to meet this particular decision.
4. As regards the plaint, the argument on behalf of the defendant was that the plaint not having been properly stamped the suit must be regarded as not having been instituted within the prescribed period, and that any order made under Section 28 of the Court Fees Act would not operate retrospectively since that section must be read subject to the express provisions of Section 4 of the Limitation Act. It was contended that, inasmuch as the plaint was not stamped in accordance with the requirements of Section 6 of the Court Fees Act, there had been no plaint at all and that illustration (a) to Section 4 of the Limitation Act shows that this Court has no alternative but to dismiss the suit as being now barred by limitation.
5. In the present case the plaint was filed and used without being properly stamped through mistake of law as to the Court fee payable. The case therefore falls within the express words of the second paragraph of Section 23 of the Court Fees Act. The decision of this Court in Venkatramayya v. Krishnayya I.L.R. 20 Mad. 319 is, in our opinion, clearly distinguishable from the present case. In that case plaint was presented on the day before the period of limitation expired and was rejected under Section 54 (6) of the Code of Civil Procedure. The plaint was re-presented on the proper stamp paper within the time required by the Court, the period of limitation having then expired. The Court held that the suit was not instituted in time upon the ground that Section 54 of the Code of Civil Procedure does not give a Court any power to extend the ordinarily prescribed period of limitation for suits. In Jainti Prasad v. Bachu Singh I.L.R. 15 All. 65 a Full Bench of the Allahabad High Court took the same view.
6. When the Court acts under Section 54 of the Code of Civil Procedure it rejects the plaint. In Venkatramayya v. Krishnayya I.L.R. 20 Mad. 319 the period of limitation expired before the plaint was accepted. There was thus according to the view taken in that case, no suit in existence at the time the period of limitation expired. In the present case the plaint was never rejected. It was accepted and acted upon by the Court and the plaintiff's claim has been adjudicated upon both by the Court of First Instance and the lower Appellate Court. In the present case it cannot be said that there was no existing suit at the time the period of limitation expired.
7. We hold that the proper Court fee payable on the plaint and the memorandum of appeal is Rs. 150 and we make an order under Section 28 of the Court Fees Act that a Court fee of Rs. 150 be paid on the plaint and on the memorandum of appeal within 21 days. Stamp duty was duly paid.
8. The case coming on for hearing after the payment of the proper Court fees as directed above, the Court considered and decided it on the merits.