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Dookhiram Naskar Vs. Durga Charan Naskar - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal925
AppellantDookhiram Naskar
RespondentDurga Charan Naskar
Cases ReferredBalkaran Rai v. Gobind Nath Tiwari
Excerpt:
pauper suit - application for leave to appeal as a pauper--time of presentation of memorandum of appeal--consent of the applicant to pay sufficient court fee after the statutory period of limitation--sufficient cause--limitation act (xv of 1877), section 5--civil procedure code (act xiv of 1882), section 582 a. - .....the decree in the suit, in which the present appellant, a minor, suing by a next friend and in forma pauperis, was plaintiff, was passed on the 13th september 1897, and the suit under some alleged compromise, was dismissed. the memorandum of appeal was filed on the 25th september 1897, and the memorandum was stamped, but not sufficiently stamped. with this memorandum was filed an application on behalf of the appellant for leave to appeal in forma pauperis. there appears to have been some delay, or perhaps negligence, on the part of those acting for the minor in bringing on this application, and it was not heard until the 23rd december 1897, when notice was ordered to be served upon the defendants, including the present appellant. notice was served, but they did not appear until the.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. This is an appeal from a decision of the Subordinate Judge of the 24-Pergunnahs, dated the 28th July 1898, and the only point discussed before us is that of limitation, in other words, was the appeal out of time?

2. The following are the admitted facts. The decree in the suit, in which the present appellant, a minor, suing by a next friend and in forma pauperis, was plaintiff, was passed on the 13th September 1897, and the suit under some alleged compromise, was dismissed. The memorandum of appeal was filed on the 25th September 1897, and the memorandum was stamped, but not sufficiently stamped. With this memorandum was filed an application on behalf of the appellant for leave to appeal in forma pauperis. There appears to have been some delay, or perhaps negligence, on the part of those acting for the minor in bringing on this application, and it was not heard until the 23rd December 1897, when notice was ordered to be served upon the defendants, including the present appellant. Notice was served, but they did not appear until the 12th March 1898, when they alleged that the infant had become entitled to certain immovable property, and that consequently he ought not to be allowed to persecute the appeal in forma pauperis. The matter came on for hearing on the 21st March 1898, before the District Judge, when those representing the minor, not desiring, possibly, to contest the allegation as to the infant having property, offered to pay the proper Court fees on the memorandum of appeal within a month, and, in the presence of both parties, the Court allowed that to be done, and admitted the appeal, and the Court-fees were actually paid on the 19th April 1898.

3. It is now said that the appeal is out of time, and that it must be taken to have been filed as on the date when the Court-fees were actually paid, i.e., on the 19th April 1898, which would be out of time, and not on the 25th September 1897, when the memorandum of appeal was filed.

4. There is some conflict of view upon the point in the reported cases in the various High Courts. The appellant is supported by the cases of Abbasi Begam v. Nanhi Begam,(1896) I.L.R., 18 All, 206 (208), and Balkaran Rai v. Gobind Nath Tiwari (1890) I.L.R., 12 All., 129 (144), and also relies upon the case of Duncan v. Bhoyro Prosad (1895) I.L.R., 22 Cal., 891. The respondent is not represented before us, but the case of Bai Ful v. Desai Manorbhai Bhavanidas (1897) I.L.R., 22 Bom., 849 (855), has been referred to by the learned Vakil for the appellant as a distinct authority in his favour, whilst possibly he may place some reliance upon the principle of the Privy Council case of Skinner v. Orde (1879) L.R., 8 I.A., 126: I.L.R., 2 All., 241. But having regard to the particular circumstances of this case, I scarcely think it is necessary to go into these cases. We are here dealing with the case of a minor not of an adult litigant. A minor of tender years--in the present case it does not appear what his age is, though it is said he is near his majority--can know nothing about his property, and those acting for him may not know much more. Here the minor had been allowed to conduct the suit in forma pauperis, and there is nothing to show that those acting for him knew that he had come into any property when the appeal was presented. It is not unreasonable that his advisers, seeing he had been allowed to sue in the first Court in forma pauperis, may have supposed that the same liberty would be given as regards the appeal, and that the memorandum of appeal was insufficiently stamped on this view. Again, the District Judge has admitted the appeal without any objection from the present appellant. No objection was then taken that the appeal ought not to be admitted on the ground that it was out of time. Under these circumstances it must, I think, be taken that the District Judge thought that the appeal ought to be admitted, and that a case had been made out under Section 5 of the Limitation Act of 1877 for its admission, or that it came within the purview of Section 582A of the Code of Civil Procedure. Under these circumstances I am not disposed to hold that the appeal was out of time. The present appeal must be dismissed.

Banerjee, J.

5. I am of the same opinion. The only point urged before us is that the appeal before the Lower Appellate Court was barred by limitation. The ground upon which the learned 'Vakil for the appellant contends that appeal was barred is, that the appeal was originally presented upon an insufficiently stamped paper, along with an application for leave to appeal in forma pauperis, and the deficiency in the Court fee stamp was not supplied until after the time for appealing had expired.

6. I do not consider this contention sound. For, though the Lower Appellate Court had not, under the present law, the same power that a Court of Appeal had under Section 371 of Act VIII of 1859, of allowing an applicant for leave to appeal in forma pauperis, after the application was rejected, a reasonable time for preferring the appeal on a proper stamp, it had power, under Section 582A of the present Code of Civil Procedure, to grant such reasonable time, when the insufficiency of the stamp upon the memorandum of appeal was caused by mistake on the part of the appellant. It had power also under Section 5 of the Limitation Act to admit the appeal out of time if there was sufficient cause shown for the delay. And the question is, whether it can be said that, in the present case, the insufficiency of the stamp was caused by a mistake on the part of the appellant, or whether it can be said under the circumstances of the case that there was sufficient cause shown for the delay.

7. Now this is how the facts stand. The appellant in the Court below, who is a minor represented by his next friend, and who was the plaintiff in the first Court, was allowed to sue in forma pauperis in that Court. He preferred the appeal on an insufficient stamp, along with an application for leave to appeal in forma pauperis; an objection was taken by the other side against his being allowed to do so, on the ground of his having acquired some property subsequent to the institution of the suit; he then offered to put in the necessary Court fee; and time was allowed to him to do so. The insufficiency of the stamp upon the memorandum of appeal was evidently caused in this instance by the appellant thinking, erroneously as it now turns out to be, that he was entitled to appeal in forma pauperis, and I do not see any reason why a case like this should be deemed not to come within the scope of either Section 582A of the Code of Civil Procedure or of Section 5 of the Limitation Act. As I understand those provisions of law, they are evidently intended to cover a case like this, as well as other cases, where the insufficiency of the stamp upon the memorandum of appeal is due to mistake, or where there is other good and sufficient cause for not presenting an appeal in proper form in time. For if the case of an unsuccessful application for leave to appeal in forma pauperis were held to be outside the scope of these provisions, the result will be this, that, however honest the impression of an applicant for leave to appeal in forma pauperis may be, that he ought to be allowed to appeal as a pauper, unless his application is either granted or rejected before the time for appealing expires, his appeal will be altogether barred by limitation and he will have no chance of preferring an appeal upon a proper stamp. It would be unreasonable to hold that every applicant for leave to appeal as a pauper must anticipate the decision of the Court, and that he must lose his right to appeal altogether unless he can be sure that his application for leave to appeal as a pauper will be granted. The case, therefore, comes either under Section 582A of the Code of Civil Procedure or under Section 5 of the Limitation Act.

8. It was lastly argued that the Lower Appellate Court has not found that the insufficiency of the stamp on the memorandum of appeal was in this case caused by mistake; or that there was sufficient cause shown for the delay in presenting the appeal on a proper stamp. To that the answer is, that the appeal was admitted by the District Judge in the presence of the pleaders of both parties, and no exception was then taken. The Court admitting the appeal had power to do so under Section 582 A of the Code of Civil Procedure, or under Section 5 of the Limitation Act; and under the circumstances of this case I do not think it is open to the appellant before us now to contend that, because the Lower Appellate Court has not expressly found that the insufficiency of the stamp was caused by mistake, or that there was sufficient cause shown for the delay in presenting the appeal on a proper stamp, we are to hold that the appeal was barred.

9. There is no suggestion, nor can there be any, that the appeal was presented on an insufficient stamp, on behalf of the minor appellant, otherwise than under an honest mistake. We must take it that in admitting the appeal, the District Judge exercised the power that he possessed under Section 582A of the Code of Civil Procedure or under Section 5 of the Limitation Act. The view I take is to some extent supported by the case of Bai Ful v. Desai Manorbhai Bhavanidas (1897) I.L.R., 22 Bom., 849. The case of Aubhoya Churn Dey v. Bissesswari (1897) I.L.R., 24 Cal., 889, cited for the appellant, is distinguishable from the present, as that was a case not of an appeal, but of a suit to which the provisions of Section 582A of the Civil Procedure Code, and of the second paragraph of Section 5 of the Limitation Act do not apply. The same remarks apply to the case of Abbasi Begam v. Nanhi Begam (1896) I.L.R.., 18 All., 206, cited for the appellant. And as regards the case of Balkaran Rai v. Gobind Nath Tiwari (1890) I.L.R., 12 All., 129, cited for the appellant, I would observe that was decided before Section 582A was enacted, and the facts of that ease were such as excluded the application of the second paragraph of Section 5 of the Limitation Act to it.


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