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Nathmull Bhuturia Vs. Golam Jabbar Mia Mutwalli Kulpara Jabed Musjid - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal273
AppellantNathmull Bhuturia
RespondentGolam Jabbar Mia Mutwalli Kulpara Jabed Musjid
Excerpt:
- .....for recovery of rs. 4773- 6-0 as arrears of rent from the opposite party in the court of the subordinate judge of bajshahi on 17th april 1939. this plaint was not sufficiently stamped. the judge however ordered the plaint to be registered and directed the petitioner to put in the deficit court-fee on or before 25th april 1939. on this last mentioned date the petitioner applied for an extension of time for filing the deficit court-fee and the judge allowed him time till 2nd may 1939. on 29th april 1939, a notice under section 34, bengal agricultural debtors act, from the haragram debt settlement board was received by the judge. on 2nd may 1939, the judge heard the pleader of the petitioner on the question as to whether further proceedings should be stayed in view of the notice under.....
Judgment:

Nasim Ali, J.

1. The petitioner filed a plaint for recovery of Rs. 4773- 6-0 as arrears of rent from the opposite party in the Court of the Subordinate Judge of Bajshahi on 17th April 1939. This plaint was not sufficiently stamped. The Judge however ordered the plaint to be registered and directed the petitioner to put in the deficit court-fee on or before 25th April 1939. On this last mentioned date the petitioner applied for an extension of time for filing the deficit court-fee and the Judge allowed him time till 2nd May 1939. On 29th April 1939, a notice under Section 34, Bengal Agricultural Debtors Act, from the Haragram Debt Settlement Board was received by the Judge. On 2nd May 1939, the Judge heard the pleader of the petitioner on the question as to whether further proceedings should be stayed in view of the notice under Section 34, Bengal Agricultural Debtors Act. On 8th May 1939, She Judge held that by the operation of the notice under Section 34, Bengal Agricultural Debtors Act, the petitioner was not exempted from payment of the deficit court-fees. He accordingly gave the petitioner time till 15th May to put in the deficit court-fee. On 15th May 1939 the petitioner applied for time to file the deficit court-fee. The learned Judge thereupon passed the following order:

Plaintiff's petition for time to file deficit court-fee is pat up. Heard plaintiff's pleader. Suit is fixed on 22nd May 1939, for filing deficit court-fee. No further time will be allowed.

2. The petitioner thereupon obtained the present Rule from this Court on 19th May 1939, calling upon the opposite party to show cause why this order of the learned Judge should not be set aside and why the filing of the deficit court-fee should not be stayed till the final disposal of the application of the opposite party before the Debt Settlement Board. The point for determination in this Rule is whether there is a suit pending before the Subordinate Judge. Under Section 26, Civil P.C., every suit is instituted by the presentation of a plaint or in such other manner as may be prescribed by the rules. Under Order 4, Rule 1 provides:

(1) Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Order 6 and Order 7, so far as they are applicable.

3. Order 7, Rule 11, so far as it is material for the purposes of this case, is as follows:

The plaint shall be rejected in the folio wing cases:. ... ... ...(b) where the relief claimed is under-valued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so:

(c) where the relief claimed 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.

4. Under Rule 2 of Order 4

The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.

5. The order of the learned Subordinate Judge clearly indicates that the plaint was registered on that date, though it was insufficiently stamped. In view of the provisions of Section 6, Clause (2), Court fees Act, the Subordinate Judge had Jurisdiction to receive this insufficiently stamped plaint and to direct the petitioner to put in the deficit court, fee within a certain time. As soon as the plaint is received, the suit must be taken to be instituted from that time though pf course the plaint is liable to be rejected under Order 7, Rule 11 of the Code if the deficit court, fees are not paid within the time fixed by the Court. We are therefore of opinion that the learned Subordinate Judge should have stayed further proceedings in the matter till the application of the debtor opposite party is decided by the Debt Settlement Board under the provisions of the Bengal Agricultural Debtors Act. The Rule is accordingly made absolute and the order complained of is set aside. There will be no order as to costs in this Rule.

6. The view taken by us in this case cannot in any way affect public revenue as the plaintiff will have to pay the deficit court-fee if the debtor's application before the Debt Settlement Board is dismissed and thereafter the plaintiff wants to get his remedy in the Civil Court.

Nrsing Rau, J.

7. I agree.


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