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Padmanund Sing Vs. Anant Lal Misser and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal20
AppellantPadmanund Sing
RespondentAnant Lal Misser and ors.
Cases ReferredMuhammad Ahmad v. Muhammad Sirjuddin
Excerpt:
civil procedure code (act xiv of 1882) section 54, clause (b) - plaint filled with insufficient court fee after the time allowed--registration of paint, effect of--subsequent rejection. - .....court-fees having been accepted by the court, though a few days after the time fixed and the plaint admitted and registered ou the direction of the court, the power conferred on the court to reject under section 54 was exhausted. as a general rule i should hold that when once the court has admitted and registered a plaint it cannot subsequently reject it. in the present case by the course it adopted the court must be taken to have extended the time for paying in the court-fees up to the 9th july, when they were actually paid in and accepted and to have treated this as the time fixed for payment of the deficit. the court cannot go behind this. to allow it to do so might lead to the gravest injustice. take the case of a suit for a large .property : an insufficient court-fee.....
Judgment:

Francis W. Maclean, C.J.

1. The question referred to ua is: whether it is competent to a Coutt to reject a plaint under Section 54, clause (b) of the Civil Procedure Code, after the plaint has been admitted and duly registered. I do not desire to be understood as saying that in no circumstances would it be competent to the Court to reject a plaint after it has once been admitted and duly registered. I pan conceive cases in which such a course might be possible, but I think they would be very exceptional. In the circumstances, however, of this particular case, I am of opinion that the plaint could not and ought not to have been rejected having been once admitted and registered. The facts found by the Referring Court are as follows : ' This is an appeal on behalf of the plaintiffs in a suit for rent. The plaint, when originally presented on the 23rd June 1902, was insufficiently stamped. The plaintiffs were directed by the Court to piy the dencit Court-fees on or before the 5th July. The Court-fees, however, were not supplied till the 9th July, i.e., after the expiry of the time allowed by the Court. _ The plaintiffs did not ask for any extension of time nor was any order made by the Court for extension. The plaint was, however, directed to be. admitted and registered and was admitted and registered accordingly. On the 2nd March 1903, which was the date fixed for the final hearing of the suit, the defendants put in a petition praying that the plaint might be rejected under Section 54 of the Civil Procedure Code, inasmuch as the deficit Court-fees had not been paid within the time originally fixed by the Court. This application was allowed and the plaint was rejected. Upon appeal by the plaintiffs the order of the First Court, which operates as a decree, was confirmed. The plaintiffs have appealed to this Court ' In these circumstances the deficit Court-fees having been accepted by the Court, though a few days after the time fixed and the plaint admitted and registered ou the direction of the Court, the power conferred on the Court to reject under Section 54 was exhausted. As a general rule I should hold that when once the Court has admitted and registered a plaint it cannot subsequently reject it. In the present case by the course it adopted the Court must be taken to have extended the time for paying in the Court-fees up to the 9th July, when they were actually paid in and accepted and to have treated this as the time fixed for payment of the deficit. The Court cannot go behind this. To allow it to do so might lead to the gravest injustice. Take the case of a suit for a large .property : an insufficient Court-fee originally paid : time given for payment of the deficit : the deficit not so paid in, but paid in two or three days afterwards, accepted by the Court and the plaint admitted,and registered. At the last moment after the incurring possibly of great expense in the conduct of the case, the plaint is rejected on the ground of the deficit not having been paid within the time fixed. If the Court had rejected the plaint in the first instance on the ground that the deficit was tendered too late, the plaintiff could then have brought a fresh action, whilst, very possibly, by the objection beiug taken at so fate a stage, such new suit would be barred by limitation. This would be a grave injustice attributable to the action of the Court itself, which lulled the plaintiff into a sense of false security by admitting and registering big plaint.

2. As regards the authorities there is a difference of judicial opinion Habibul Hossein v. Mahomed Reza(1881) I.L.R. 8 Calc. 192 supports my view. A contrary view was taken in Brahananoyi Dasi v. Andi Si(1899) I.L.R. 27 Calc. 376 Karaman Singh v. Norman Cockell(1897) 1 C.W.N. 670 may be distinguished : there the plaintiff refused to pay the deficiency : although I should have thought that would have been ground for refusing to go on with his case, until it had been paid, rather than for rejection under Section 54. The practical result would be the same.

3. In the Madras High Court the decisions are conflicting : see Valiya Kesarea Vadhyar v. Suppannair (1880) I.L.R. 2 Mad. 308 and Venkatesa Taxker v. Ramasami Chettair (1895) I.L.R. 18 Mad. 338 .Kishore Singh v. Sabdal Singh (1889) 1.L.R. 12 All. 553 is against my view : that case was apparently decided on the ground that as in Section 53 there was a limitation of time and there was not in Section 54, the power given under the latter section could be exercised at any time. With great respect I am unabte to accept this reasoning. The question seems to me to be whether the power under Section 54 is not exhausted, when the plaint has once been admitted and registered. The Court has to decide under that section, whether, when a plaint is tendered, it ought to be admitted or ought to be rejected. If it admit it, I do not think any way in circumstances such as the present that it can subsequently reject it.

4. I therefore think the appeal should be allowed, but as the majority of the Bench think that the justice of the case will be met by treating the plaint as presented on the 9th of July 1902 (which the plaintiff accepts) with the consequences which ensue as to limitation or otherwise from the plaint being so treated, I am agreeable that the case should go back upon that footing to be dealt with by the Munsiff.

The result is that the decrees of the Courts below must be set aside and the cases remanded to the Court of First Instance to be dealt with on the footing of the presentation of the plaints on the 9th July 1902.

5. As there have been mistakes on each side, each party will bear his own costs throughout.

Chunder M. Ghose, J.

6. I should answer the question referred to the Full Bench by saying that it is competent to a Court to reject, a plaint under Section 54, Clause (b) of the Civil Procedure Code, after the plaint has been admitted and duly registered. The provisions of Section 54 are such as not only give the Court full power to reject a plaint, though it has been admitted and duly registered, but it is obligatory upon the Court to reject it, if the conditions prescribed in the section are not complied with; and in this respect, I agree with the decision of this Court in the cases of Brahmamoyi Dasi v. Andi Si (1889) I.L.R. 27 Calc. 376, Karaman Singh v. Norman Cockell (1897) 1 C.W.N. 670, as also of the Allahabad High Court in the case of Kishore Singh v. Sabdal Singh (1889) I.L.R. 12 All. 553, where the matter was fully considered. In this connection, I may also refer to the case of Asgar Ali v. Troilokya Nath Ghose (1890) I.L.R. 17 Calc. 631, where a somewhat cognate section of the Code, namely, Section 245, had to be considered; and one of the questions that was raised was, whether it was competent to the Court to allow a petition for execution to be amended, if it was not in accordance with the requirements of Section 235 and the following sections, and if it was not amended within the time fixed by the Court: and it was held by the majority of the Full Bench that it was not so competent. The reasoning, which was adopted in that case, applies equally to a question like the one before us as arising under Section 54 of the Code.

7. But in the circumstances of the present case, as pointed out by the learned Chief Justice, I am disposed to think that the plaint which was verified and registered on the 9th July 1902 may well be regarded as presented and filed on that day, with all the consequences that would follow in regard to limitation or otherwise from its being filed on that date; and in this view of the matter, I agree in remanding the case for trial.

Rampini, J.

8. The question referred to us is whether it is competent to a Court to reject a plaint under Section 54, Clause (b) of the Code of Civil Procedure, after the plaint has been admitted and duly registered.

9. I would answer that question in the affirmative.

10. It has already been decided by this Court in the case of Karaman Sing v. Norman Cockell (1897) I.C.W.N. 670, and in the case of Brahmamoyi Dasi v. Andi Si (1889) I.L.R. 27 Calc. 376 that Section 54 may be applied at any stage of a suit and that the fact that a plaint has been registered does not prevent its rejection under that section. It has also been so held in the case of Venkatesa Tauker v. Ramasami Chettiar (1895) I.L.R. 18 Mad. 338 decided by the Madras High Court and in the case of Kishore Singh v. Sabdal Singh (1889) I.L.R. 12 All. 553. The Judges of the Allahabad High Court, who decided the case of Kishore Singh v. Subdal Singh (1889) I.L.R. 12 All. 553, have entered very fully into the reasons for their decision. It is unnecessary for me to repeat them here. I would only say that I fully agree with the reasons for that decision.

11. I regret, however, that I cannot agree with my learned colleagues in treating the plaint in this case as having been presented on the 9th July 1902. As a matter of fact, it was not presented on the 9th July, but on the 23rd June 1902, and the Munsiff, in whose Court it was presented, gave the plaintiffs one week's time to pay in the deficit Court-fees. This order was signed by the Munsiff himself. The period for paying in the deficit Court--fee duty expired, on the 5th July 1902, but it was not paid in on that date. It was not paid in until the 9th July and then a certificate was put before the Munsiff, signed by a ministerial officer of his Court, saying that the Court--fee was correct. Relying upon that certificate, the Munsiff ordered the plaint to be registered. Now the fact that the Court--fee was not deposited in proper time did not come to the notice of the Munsiff till the 2nd of March following. That was very unfortunate. But it appears to me that the plaintiffs were to blame for not having paid in the deficit Court-fee within the time allowed. If they had done so, their plaint would not have been liable to be rejected.

12. It has been said that the Munsiff, when he accepted the deficit Court-fee on the 9th July 1902, practically extended the time, which he had previously granted, for playing in the deficit Court--fee. I do not however think that he did so. As a matter of fact he did not do so consciously and it is doubtful whether he could do so. There is some conflict of decisions as to whether, after the period during which the deficit Court--fee should be paid has expired, it is possible for a Court to extend the time for its deposit. It is unnecessary to quote all the decisions on this point. But I may cite one, namely, the decision in the case of Muhammad Ahmad v. Muhammad Sirjuddin (1901) I.L.R. 23 All. 423 in which it is at least doubted, whether it is possible for a Court to extend the period after it has expired.

13. In these circumstances I think that the decision of the Lower Court is correct and I would dismiss this second appeal.

Geidt, J.

14. I am of opinion that the answer to the question referred to us, if it really arises, ought to be in the affirmative. In the circumstances of this case, however, I think that the Munsiff was wrong in applying Section 54(b) of the Code of Civil Procedure.

15. The Munsiff on 23rd June had ordered the deficit Court-fees to be paid by 5th July, and it was undoubtedly his duty to reject the plaint, when he found that the order bed not been complied with, and no extension of the period had been granted. Through inadvertence, however it may be, or some such cause, though no such extension had been asked for or obtained, the Munsiff on July 9th accepted the deficient fees and admitted and registered the plaint. It was not till the 2nd March following, when the case was set down for final hearing, that the noncompliance with his order of 23rd June was brought to his notice. The state of things is not one that is contemplated by Clause (b) of Section 54. The stage at which effect should have been given to the provisions of that clause had passed by, owing to the conduct of the Court itself in accepting the deficiency after the period limited by its order, and in proceeding with the suit. This seems to me eminently a case for the application of the maxim, 'quod fieri non debet factum valet.' The plaint had been received and acted on as the foundation of the suit, and had the plaint been presented on the 9th July, when the deficiency in the Court-fees was made up, there would have been no flaw in the proceedings. In these circumstances the proper course for the Munsiff at the stage at which the case had arrived on 2nd March, was to treat the plaint as though it had been filed on 9th July, dismissing any portion of the claim that had become barred by that date.

Holmwood, J.

16. I am of the same opinion as Geidt J.


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