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Moti Sahu and anr. Vs. Chhatri Das and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal780
AppellantMoti Sahu and anr.
RespondentChhatri Das and ors.
Cases ReferredSkinner v. Orde I.L.R.
Excerpt:
limitation - plaint insufficiently stamped--practice--date of institution of suit--presentation of plaint insufficiently stamped--court-fees, payment of requisite, on a date subsequent to that on which plaint was presented, effect of, on period of limitation. - .....has been dismissed by both the lower courts as barred by limitation, because the plaint was not properly stamped within the period prescribed by the law of limitation for presenting a suit of this description.2. the lower courts have followed the judgment of a full bench of the allahabad high court in the case of balkaran rai v. gobind nath tiwari i.l.r. 12 all. 129. that case, we may observe, is not on all fours with this case, as the document concerned was a memorandum of appeal presented to the high court itself, whereas in the case before us it is a plaint. however, several of the grounds upon which that case was decided are applicable to the present case. we may, at the outset, refer to the case of chennappa v. raghunatha i.l.r. 15 mad. 29 in which disapproval is expressed of.....
Judgment:

Prinsep and Banerjee, JJ.

1. This suit has been dismissed by both the Lower Courts as barred by limitation, because the plaint was not properly stamped within the period prescribed by the law of limitation for presenting a suit of this description.

2. The Lower Courts have followed the judgment of a Full Bench of the Allahabad High Court in the case of Balkaran Rai v. Gobind Nath Tiwari I.L.R. 12 All. 129. That case, we may observe, is not on all fours with this case, as the document concerned was a memorandum of appeal presented to the High Court itself, whereas in the case before us it is a plaint. However, several of the grounds upon which that case was decided are applicable to the present case. We may, at the outset, refer to the case of Chennappa v. Raghunatha I.L.R. 15 Mad. 29 in which disapproval is expressed of that decision of the Allahabad Court, and a contrary rule of practice is laid down. We may also observe that, although the practice of this Court has varied, it has not been in accordance with the practice laid down by the Allahabad Court. We are of opinion that the decrees of the Lower Courts in this case cannot be maintained.

3. The plaint was received on the 10th May 1890, and an endorsement was recorded thereon to the following effect: 'This day the plaint is presented, and it is found that it is presented on an insufficiently stamped paper. The plaintiffs are therefore ordered to pay the proper Court-fees within the 27th May.' Now, it so happened that, when the Court-fees were paid on the 27th May, it was found that the suit was then barred by limitation, and on this ground the suit has been dismissed. That the Courts are at liberty to extend the period for completing all formalities requisite to make a plaint a regular plaint, so as to be registered in the Court to which it is presented when it is written on a paper insufficiently stamped, is shown by Section 54 of the Code of Civil Procedure. Clause (b) of that section enables a Court to fix a time within which the requisite stamped paper is to be furnished, and provision is made that, if this indulgence is not taken advantage of, the plaint shall be rejected. If the requisite stamped paper is put in, and the plaint is otherwise regular, it is admitted and registered. Section 4 of the Limitation Act requires that every suit shall be instituted within the period prescribed therefor by the second schedule to that Act, and the explanation sets out that (for purposes of limitation) a suit is instituted in ordinary cases when the plaint is presented to the proper officer. There is thus a distinction recognized between the presentation of a plaint within the terms of Section 48 of the Code of Civil Procedure, and its admission, after all requisite formalities, including the payment of the necessary Court-fees, shall have been completed. Section 6 of the Court-fees Act declares that no document of any of the kinds specified by the Act shall be filed, exhibited, or recorded in any Court of Justice, or shall be received by any public officer, unless, in respect of such document, there be paid a fee of an amount not less than that indicated by the first or the second schedule as the proper fee for such document, and Section 28 declares that no document which ought to bear a stamp under that Act shall be of any validity, unless and until it is properly stamped, that is to say, unless a plaint bears a proper stamp within the terms of the Court-fees Act, it shall not be admitted or registered, nor shall it form the subject of any proceedings against any of the parties. It also declares that if any such document is, through mistake or inadvertence, received, filed, or used in any Court or office without being properly stamped, the presiding Judge or the head of the office may, if he thinks fit, order that such document be stamped as he may direct, in these terms we think-the Court Fees Act gives effect to the object of Section 54 of the Code of Civil Procedure, and it further declares that, on such document being stamped accordingly, the same and every proceeding relative there to shall be as valid as if it had been properly stamped in the first instance. By this we understand that, if afterwards a document shall have been properly stamped, it is as valid as if it had been properly stamped in the first instance. We think that the terms of Section 4 of the Limitation Act and its explanation, and Section 28 of the Court Fees Act, show that this suit cannot be properly barred by limitation. We may further refer to the case of Skinner v. Orde I.L.R. 2 All. 241; L.R. 6 I.A. 126 decided by their Lordships of the Privy Council, in which, in a somewhat analogous case, it was held that the date of the institution of a suit should be reckoned from the date of the presentation of the plaint, and not from that on which the requisite Court-fees were subsequently put in, so as to make it admissible as a plaint. Under such circumstances, we feel ourselves unable to follow the judgment of the Full Bench of the Allahabad High Court, and we accordingly set aside the judgments of the Lower Courts, and remand the case to be dealt with on the merits. The costs will abide the result.


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