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NaimuddIn Mahomed Vs. Huri Mohun Chuckerbutti - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal41
AppellantNaimuddIn Mahomed
RespondentHuri Mohun Chuckerbutti
Cases ReferredMoti Sahu v. Chhatri Das I.L.R.
Excerpt:
limitation - plaint insufficiently stamped, when deemed to have been presented--suit, institution of--civil procedure code (act xiv of 1882), section 54(b)--limitation act (xv of 1877), section 4, schedule ii, article 23. - .....his suit on the day when he filed his pauper petition, or on the day when the court-fee being paid the plaint was numbered and registered as a plaint. it was held by the judicial committee that the suit must be admitted to have been instituted when the application to sue as a pauper was filed, and they observed as follows i.l.r. 2 all. 241 (250): 'although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in indian courts, that a wrong stamp is put up on the plaint originally, and the proper stamp is afterwards affixed. the plaint is not converted into a plaint from that time only, but remains with its original date on the file of the court, and becomes free from the objection of an improper stamp when the correct stamp has.....
Judgment:

W. Comer Petheram, C.J. and Ghose, J.

1. This is an appeal against an order of remand passed by the Subordinate Judge of Dacca on the 19th June 1891. It appears that the plaint in this case was presented in the Court of First Instance on the 6th May 1890; but, it being found that it was insufficiently stamped, the following order was recorded: 'The plaint having been filed insufficiently stamped, ordered that the deficient Court-fee be paid within seven days.' Within the time appointed, the plaintiff paid the deficient Court-fee stamp, and the plaint was duly registered; but it so happened that during that time the period within which the plaintiff was bound to institute his suit under the law of limitation had expired, although, upon the date that the plaint was originally presented, it was within time.

2. Objection having been raised by the defendant on the score of limitation, the Munsif held that the plaint should be regarded as having been filed not on the 6th May 1890, but on the subsequent date when the deficient Court-fee was paid, and that therefore the suit was barred by limitation. He relied on the Full Bench case of Balkaran Rai v. Gobind Nath Tiwari I.L.R. 12 All. 129, which deals with a memorandum of appeal that was presented to the Allahabad High Court.

3. The Subordinate Judge, upon appeal by the plaintiff, has held that the suit is within time, and that it should be taken to have been instituted on the 6th May 1890, when the plaint was first presented, and ho has accordingly directed that the case should go back to the Court of First Instance for a trial on the merits.

4. The present appeal is by the defendant against this order. We think that the Sub-Judge has taken a correct view of the matter. By Clause (b) of Section 54 of the Code of Civil Procedure, it is provided that the plaint shall be rejected 'if the relief sought is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so.'

5. Now, in this case the plaint was not rejected by the Munsif, and he could not do So because the law requires that the Court shall call upon the plaintiff to supply the requisite stamp within a fixed time, and it is only if the party fails to comply with the order of the Court that the plaint is to be rejected. The plaintiff did comply with the order of the Court within the time appointed, and the plaint was duly registered.

6. We think that under these circumstances the suit should be taken to have been instituted on the day that the plaint was presented, that is to say on the 6th May 1890, to the proper officer, as provided by Section 4 of the Limitation Act (Act XV of 1377). This is the view that was adopted in the case of Mussumat Begee Begum v. Syud Yusuf Ali 6 N.W.P. 139 and this also is the view that was expressed by the Judicial Committee of the Privy Council in the case of Skinner v. Orde I.L.R. 2 All. 241. In this latter case, the question that was raised was, whether a person who had asked for leave to sue as a pauper, but who subsequently, pending the inquiry into his pauperism, paid in the requisite Court-fee, should be taken to have instituted his suit on the day when he filed his pauper petition, or on the day when the Court-fee being paid the plaint was numbered and registered as a plaint. It was held by the Judicial Committee that the suit must be admitted to have been instituted when the application to sue as a pauper was filed, and they observed as follows I.L.R. 2 All. 241 (250): 'Although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in Indian Courts, that a wrong stamp is put up on the plaint originally, and the proper stamp is afterwards affixed. The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp has been placed upon it.' And the same view was practically taken in the case of Mengur Munder v. Huree Mohun Thakoor 23 W.R. 447.

7. We think that the order that was made by the Court on the 6th May 1890 may well be regarded as an order of amendment of the plaint within a given time, and in that class of cases it has been held that the return of a plaint for amendment, and its subsequent presentation and acceptance by the Court, would not constitute a fresh institution of the suit. See Ram Lal v. Harrison I.L.R. 2 All. 832, Greesh Chunder Singh v. Pran Kishen Bhuttacharjee 7 W.R. 157, and Ram Coomar Shaha v. Dwarkanath Hazra 5 W.R. 207.

8. The learned pleader for the appellant relied strongly upon the Full Bench decision in Balkaran Rai v. Gobind Nath Tiwari I.L.R. 12 All. 129; but that had reference to a memorandum of appeal which perhaps stands on a different footing from a plaint dealt with under Section 54 of the Code, and we may observe that the view of the Allahabad High Court as expressed in that case, has not been adopted in this Court. In the case of Syud Ambur Ali v. Kali Chand Doss 24 W.R. 258 it was held that 'the Deputy Registrar has no authority to make an order returning a petition of appeal when the stamp fee paid upon it is insufficient. The right course for that officer, if his requirements as to stamps are not complied with, is to lay the matter before the Court. But if the appellant is ready to pay what is required, then, whether the time for filing the appeal has expired or not, the Deputy Registrar is bound to receive it if it was originally presented in time.' And in a recent case [Moti Sahu v. Chhatri Das I.L.R. 19 Cal. 780] decided by Prinsep and Banerjee, JJ., on the 10th May last, this Court did not follow the decision of the Allahabad Court, and it was held with reference to a plaint and in circumstances similar to those in the present case, that the suit should be regarded as having been instituted on the day that the plaint was originally presented, and that it was not barred by the law of limitation.

9. Upon these considerations we think that the decision arrived at' by the Court below is right, and this appeal should be dismissed with costs.


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