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Rajkishori Koer Vs. Madan Mohan Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal75
AppellantRajkishori Koer
RespondentMadan Mohan Singh
Cases ReferredSunendra Kumar Basu v. Kunja Behary Singh
Excerpt:
court-fee - plaint, insufficiently stamped--deficit court-fee time for payment of--civil--procedure code (act xiv of 1882) section 54--court-fees act (vii of 1870) section 28--limitation. - .....the amount claimed with interest was rs. 16,302 on the first bond, and rs. 6,523 on the second bond. the plaint bore a stamp of rs. 835 which would be correct if the aggregate claim had arisen on only one cause of action, but having regard to section 17 of the court-fees act, the stamp was not sufficient, and on the 7th november the court recorded this order: 'the plaintiff is to pay the deficit court-fees of rs. 180 within two weeks.' on he 2nd december the latest date allowed for payment by that order (the 1st december being a holiday) the plaintiff put in petition that he wished to cite authorities to show that the courts was wrong in demanding an additional court-fee and he prayed for two weeks' time to enable him to have the point argued and to cite authorities. the court's.....
Judgment:

Ghose and Pratt, JJ.

1. This is a suit upon two mortgage bonds said to have been executed by the late Achaibat Pershad Narayan Singh, one on the 7th Bysack 1293 corresponding to the 25th April 1886, for Rs. 5,000, the due date being the 11th November 1886, and the other on the 8th Jeyt 1293 corresponding to the 26th May 1886, for Rs. 2,000, the due date being the 9th January 1887.

2. The plaint was presented to the Court on the 16th November 1898, the last date to save limitation as regards the first mentioned bond the 12th to 15th November being close holidays. The amount claimed with interest was Rs. 16,302 on the first bond, and Rs. 6,523 on the second bond. The plaint bore a stamp of Rs. 835 which would be correct if the aggregate claim had arisen on only one cause of action, but having regard to Section 17 of the Court-fees Act, the stamp was not sufficient, and on the 7th November the Court recorded this order: 'The plaintiff is to pay the deficit court-fees of Rs. 180 within two weeks.' On he 2nd December the latest date allowed for payment by that order (the 1st December being a holiday) the plaintiff put in petition that he wished to cite authorities to show that the Courts was wrong in demanding an additional court-fee and he prayed for two weeks' time to enable him to have the point argued and to cite authorities. The Court's order on that petition was: 'Two weeks' time may be granted.' On the 15th December Rs. 180 court-fee stamp was filed, the plaintiff having apparently abstained from further urging the objection to his liability. On the same day the Court recorded an order directing the plaint to be admitted and registered.

3. At the hearing in the Court below, the defendant, who is the widow of the late Achaibat Pershad Narayan Singh, urged that the suit was barred by limitation, and while admitting that the bonds seemed apparently to have been executed by her husband averred that she had no knowledge of them, as they came into existence before her marriage, and she therefore put the plaintiff to strict proof of due execution and the passing of consideration. The suit was decreed, and hence this appeal by the defendant.

4. As regards limitation, there can be no doubt that under Section 54(b) of the Civil Procedure Code, read with Section 28 of the Court-fees Act, it is in the discretion of the Court to fix a time within which the requisite court-fee is to be furnished and that if the stamp be made good within the time indicated, to date (sic) the institution of the suit is to be reckoned from the date of (sic) presentation of the plaint. For authority we need only (sic) the case of Moti Sahu v. Chhatri Das (1892) I.L.R. 19 Calc. 780 which was follow (sic) case of Sunendra Kumar Basu v. Kunja Behary Singh (1900) I.L.R. 27 Calc. 814. And we further think that the Court may in its discretion enlarge the time originally fixed for making good the requisite stamp. But the question which arises is whether the Subordinate Judge, by his order of the 2nd December on the plaintiff's petition for time to enable him to cite authorities, intended in any event to enlarge the time for filing the deficit stamp. We think this must hare been so understood both by the plaintiff and by the Court. The plaintiff who had already paid so much as Rs. 835 would hardly have staked his entire claim upon the chance of his being able to show that no further court-fee was demandable by law, And the Subordinate Judge admitted the plaint with a full knowledge of what he intended when granting an extension of time to the plaintiff. There was a bond fide mistake on the part of the plaintiff, and it was a case in which the Court was justified in allowing time to consult authorities, and to file the deficit stamp, if the plaintiff failed to show that the demand was contrary to, law.

5. There is another point of view from which we think the plaintiff's suit could not have been rightly rejected. There were two separate causes of action. The stamp of Rs. 835 was more than sufficient for the suit as based on the first bond and the balance of Rs. 165 together with the excess paid on the 15th December was adequate for the suit as based on the later bond which was not barred on the 15th December.

6. Their Lordships after discussing the merits of the case dismissed the appeal with costs.


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