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Surendra Prosad Lahiri Choudhuri Vs. AftabuddIn Ahmed - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in70Ind.Cas.43
AppellantSurendra Prosad Lahiri Choudhuri
RespondentAftabuddIn Ahmed
Cases ReferredJanaki Nath Hore v. Prabhasini Dasi
Excerpt:
civil procedure code (act v of 1908), section 27, 148, 149, order xlvii, rule 4, clause (a) - plaint--insufficient stamp--extension of time for supplying deficiency--limitation--order rejecting plaint for failing to supply deficiency within time--review--notice to defendant--limitation. - .....14 m.l.j. 7 (p.c.).4. there is a further point to be considered and that is whether at the time the review was granted there was any opposite party on whom notice, could have been served. when the order rejecting the plaint was made, no summons had issued on the defendant, nor could any summons be issued, since section 27, civil procedure code, only provides summons to issue where suits have been duly instituted, and until the plaint is registered, the suit has not been duly instituted. in the case of joy koomar dutt jha v. esharee nund dutt jha 18 w.r. 475 : 10 b.l.r. 155 which was followed in janaki nath hore v. prabhasini dasi 30 ind. cas. 898 : 43 c. 178 : 22 c.l.j. 99 : 19 c.w.n. 1077 it was held that when' an appeal is summarily dismissed by a division bench of this court,.....
Judgment:

Newbould, J.

1. This Rule was directed against an order of the Small Cause Court Judge decreeing a suit against the petitioner. The plaint in the suit was presented on the 16th May 1919, the last day for filing the suit under the limitation Act. That plaint was insufficiently stamped and the Court required the plaintiff to supply the deficit Court-fee within four days. This was not done and the plaint was rejected on the 28th May 1919. On the 5th June 1919 the plaintiff applied for a review of the order rejecting the plaint and the review was granted without any notice of the application to the defendant. The order of rejection of the plaint was set aside and the plaintiff was allowed 15 days' time from the date of that order, the 20th December 1919, for putting in the deficit Court-fee. The Court-fee was duly paid by the plaintiff and the plaint was registered In due course. The suit was tried, and at the hearing of the suit the Pleader for the defendant stated that he would not press any other objection than that of limitation taken in the written statement, and he did not adduce any evidence, nor cross-examined the plaintiff who deposed in support of his claim. The point of limitation was decided against the defendant and the suit decreed.

2. Under the present Civil Procedure Code it is clear under Sections 148 and 149 that a Court has power to extend the time for filing deficit Court-fee and can extend that time, even though the period which had been fixed may have expired.

3. The question to be decided in this appeal is whether the order of the 20th December reviewing the order rejecting the plaint was bad, because it was made without notice to the defendant. On behalf of the petitioner reliance is placed on the wording of Order XLVII, Rule 4, Clause (a), which provides that no application for review shall be granted without previous notice to the opposite party. So far as they go, the words of the rule are perfectly clear. In support of the contention reliance was placed on the rulings in Golaboo v. Ram Dyal Singh 8 W.R. 304 and Zahur-ud-din v. Nur-ud-din 14 M.L.J. 7 (P.C.).

4. There is a further point to be considered and that is whether at the time the review was granted there was any opposite party on whom notice, could have been served. When the order rejecting the plaint was made, no summons had issued on the defendant, nor could any summons be issued, since Section 27, Civil Procedure Code, only provides summons to issue where suits have been duly instituted, and until the plaint is registered, the suit has not been duly instituted. In the case of Joy Koomar Dutt Jha v. Esharee Nund Dutt Jha 18 W.R. 475 : 10 B.L.R. 155 which was followed in Janaki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 898 : 43 C. 178 : 22 C.L.J. 99 : 19 C.W.N. 1077 it was held that when' an appeal is summarily dismissed by a Division Bench of this Court, that order can be set aside on review on an ex parte application without notice to the respondent. In the former of those cases, it was contended on behalf of the respondent that no review of judgment could be granted without a previous notice to the opposite party and it was held, that there could be no opposite party, as the first application for admission of the special appeal was necessarily ex parte. It seems to me that these remarks are equally applicable to the case of the proceedings in Court in a suit before it reached the stage of the point being registered. They are necessarily ex parte, and following the principle of these rulings I hold that the order passed at that stage of the case can be reviewed without notice to the defendant, who could not have appeared before Court when the order was made. Once the order rejecting the plaint is set aside on review, the Court has full power to extend the time for payment of the deficit Court-fee, and the plaint having been originally filed within the period of limitation, the suit was not barred.

5. In this view I discharge the Rule with costs--one gold mohur.


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