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Bibhas Mohan Mukherjee and ors. Vs. Hari Charan Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberFull Bench Ref. No. 1 of 1954 in A.F.O.D. No. 159 of 1949
Judge
Reported inAIR1961Cal491
ActsCourt-fees Act, 1870 - Section 8B(3); ;Bengal Court-fees (Amendment) Act - Section 6(2); ;Code of Civil Procedure (CPC) - Section 2(2) - Order 7, Rule 11
AppellantBibhas Mohan Mukherjee and ors.
RespondentHari Charan Banerjee and ors.
Appellant AdvocateSunil Kumar Ghose and ;Shyam Pada Choudhary, Advs.
Respondent AdvocatePurnendu Sekhar Basu, Adv.
Cases ReferredAnnapurna Dassi v. Sarat Chandra
Excerpt:
- .....conclude the instant reference as, in my opinion, they were obviously referring to rejection of plaint or dismissal of suit on account of non-payment of court-fee or deficit court-fee. it is also interesting to note that das, j. himself who delivered the judgment of this court in : air1953cal42 , and relied, in support of the view, taken by him, on the point in the said case, upon his own earlier decision, reported in 52 cal wn 684 did actually hold, in the latter case, while commenting upon the earlier decision of this court in : air1940cal451 , and justifying and distinguishing the same, -- or, seeking so to do, -- that the order in that case : air1940cal451 , which was actually one, rejecting the plaint, but which should have been one, dismissing the suit under section 8-b (3) of.....
Judgment:

Lahiri, C.J.

1. This reference arises out of an appeal from original decree filed by the plaintiffs against an order passed by the Subordinate Judge under Section 8-B(3) of the Court-fees Act. The facts leading up to this reference have been summarised in the order of reference and they are as follows :

2. The suit out of which this reference arises was one for a declaration that a certain preliminary decree is a suit for partition passed on compromise was invalid, inoperative and fraudulent and for certain other reliefs one of which was for a new preliminary decree. Initially the plaintiffs treated the reliefs claimed by them as for partition only and paid a court-fee stamp of Rs. 15/- upon the plaint. On the objection ot the Court, however, the plaintiffs put in an additional court-fee stamp of Rs. 20/-- This court-tee was tentatively accepted by the Court as sufficient subject to any objection that might be raised by the defendants. After the defendants had entered appearance in the suit, they raised a point as to the sufficiency of court-fees paid by the plaintiffs and upon that objection a preliminary issue was framed to the following effect :

'Is the court-fee paid sufficient?'

The issue as to sufficiency of court-ices was tried as a preliminary issue in the suit and upon that issue the learned subordinate Judge held that the suit filed by the plaintiffs was not for partition but one for a declaration with consequential reliefs under Section 7(iv)(e) of the Court-fees Act and held that the plaintiffs were required to pay ad valorem court-fees upon a sum of Rs. 8,000/-. By an order dated June 20, 1949, the learned Subordinate Judge directed the plaintiffs to pay deficit court-fee to the extent of Rs. 610/- by June 27, 1949, in default, the suit would staud dismissed under Section 8-B (3) of the Court-tees Act. After an unsuccessful attempt to get an extension of time the plaintiffs eventually failed to deposit the additional court-fees as directed by the Court with the result that the suit stood dis-missed in accordance with the provisions of Section 8-B (3) of the Court-fees Act. A decree was drawn up by the Court and against that decree the plaintiffs filed an appeal to this Court. When the appeal came up for hearing a preliminary objection was raised on behalf of the respondents on the ground that the order passed by the learned Subordinate Judge under Section 8-B (3) of the Court fees Act was not a decree within the meaning of Section 2(2) of the Code of Civil Procedure and as such the appeal filed by the plaintiff's was not competent. In support of this contention the respondents relied upon a decision of a Division Bench of this Court in the case of Mahaluxmi Devi v. Bamacharan Nandy, : AIR1953Cal42 . The decision relied upon by the respondents supports the preliminary objection raised by them but the Division Bench before which this preliminary objection was raised was inclined to differ from the judgment in the case of Mahaluxmi Devi, : AIR1953Cal42 , and referred the following questions to the Full Bench :

(I) Is the order dismissing the suit under Section 8-B (3) of the Court-fees Act an appealable one?

(2) Was the decision in : AIR1953Cal42 , correctly decided?

3. In Mahaluxmi Devi's case, : AIR1953Cal42 , the Division Bench consisting of Das and Guha Roy, JJ., gave two reasons for holding that an order of dismissal under Section 8-B (3) of the Court-fees Act is not appealable. In the first place, it held that such an order is not an order of rejection of plaint; in the second place, it further held that the order is not a formal expression of adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit within the meaning of Section 2(2) of the Code of Civil Procedure. With regard to the first ground it is pointed out by the learned Judges that under Sub-section (2) of Section 6, which was added by the Bengal Amendment of 1935, the Court is authorised to receive an insufficiently stamped plaint subject to the condition that 'the plaint shall be rejected' unless the plaintiff pays the deficit court-fees within a time to be fixed by the Court; but under Section 8-B (3) of the Court fees Act when the plaintiff fails to pay the court fee determined by the Court on the objection ot the defendant 'the suit shall be dismissed'. It was ruled by Their Lordships of the Division Bench that when the legislature uses two words 'reject' and 'dismiss' in the two sections, the one cannot be equated to the other and both of them cannot be given the same meaning and consequently an order of dismissal under Section 8-B (3) ot the Court-fees Act cannot mean rejection of a plaint.

4. With great respect to the learned Judges who decided, that case I cannot agree with the reasons given by them for holding that an order of dismissal Under Section 8-B (3) of the Court-tees Act cannot mean a rejection of a plaint. The power of rejecting a plaint is really conterred upon the Court by Order VII, Rule 11 of the Code of Civil Procedure and under that Rule the Court has the power of rejecting a plaint at any stage of the suit before or after the registration of a plaint and before or after the appearance of the defendant (see the decision of the Full Bench in the case of Padroanand Singh v. Anant Lal Misser, ILR 34 Cal 20 and also Selima Shee ham v. Hafez Mohammad : AIR1932Cal685 . Under Section 6(2) of the Court-tees Act the legislature is referring to the power ot rejecting a plaint before its registration but that does not take away the power of the Court under Order VII, Rule 11 to reject the plaint after its registration and even after the appearance of the defendant. It is true that in Section 8-B (3) the language is that the suit shall be dismissed. To my mind, the word 'dismissed' is used in contra-distinction to the word 'reject' to denote that the power under Section 8-B (3) is to be exercised alter the registration of the plaint after the appearance of the defendant, whereas the power under Section 6(2) is to be exercised before the registration of the plaint and before the appearance of the defendant. Both the powers, however, are different instances of the power of rejection of a plaint under Order VII, Rule 11 of the Code of Civil Procedure.

5. In the case of Jarimon Khatoon v. Secretary of State. 44 Cal WN 745 : (AIR 1940 Cat 451), a Division Bench of this Court held that when the plaintiff fails to pay the court-tee under Section 8-B (2) of the Court-fees Act, the proper order to pass under Section 8-B (3) is to dismiss the suit and not to reject the plaint but, nevertheless, in that case an appeal was entertained by this Court The form of the order under Section 8-B (3) of the Court-fees Act must, no doubt, be a dismissal ot the suit and under that section the Court is bound to dismiss the suit because that is the mandate of the legislature; but its effect in law is a rejection of the plaint under Order VII. Rule 11 ot the Code of Civil Procedure. That this is a legal effect of an order of dismissal under Section 8-B (3) of the Court-fees Act was realised by Das, J., himself sitting singly in the case of Sudhir Kumar v. Mohadeb Chakrabarty, 52 Cal WN 684, where referring to Jarimon's case : AIR1940Cal451 , his Lordship made the following observations at page 689;

'In that case whether the order of thc trial Court amounted to a rejection of the plaint or a dismissal of the suit in either event an appeal lay to this Court.'

It is interesting to note that under Section 10(ii) ot the Court-fees Act which authorises the Court to dismiss a suit in case of failure of the plaintiff to pay additional court-fee as determined under Clause (i) of that section it was held by a Full Bench of the Allahabad High Court in the case of Balkaran Rai v. Gobind Nath Tiwiiri, ILR 12 All 129, that a dismissal under Section 10(ii) of the Court-fees Act has the same effect as the rejection of a plaint under Section 54 of the Code of Civil Procedure of 1882 corresponding to Order VII, Rule 11 of the present Code. It is true that Section 10 has been repealed in Bengal by Bengal Act VII of 1935 and it has been re-enacted in a different form by Section 8-B. The words 'the suit shall be dismissed', however, are common to the old Section 10 (ii) and the new Section 8-B (3). Therefore the Full Bench Decision of the Allahabad High Court in Balkaran's case, ILR 12 All 129, may be used for the interpretation of the same words which occur in Section 8-B (3) of the Court-fees Act as amended in Bengal.

6. I may also refer to a decision of the Supreme Court in the case of Nemi Chand v. Edward Mills Co., Ltd., : [1953]4SCR197 , where the Supreme Court hud to consider the meaning of the word 'final' as occurring in Section 12 of the Court-fees Act. In that case after pointing out that although the word 'final' takes away the right of the appeal, it docs not confer on a decision on the question of court-fees a complete immunity from examination in a higher Court, the Supreme Court makes the following observation at page 828 (of SCA) : (at p. 32 of AIR) :

'Similarly, when a party thinking that a decision under Section 12 is palpably wrong takes the risk of his plaint being rejected or suit dismissed and then appeals from the order rejecting the plaint or from the decree dismissing the suit but not from the decision on the question of conrt-fee, then it is open to him to challenge the interlocutory order even on the question of court-tee made in the suit or appeal.'

This passage, in my opinion, lends indirect support to the conclusion that an appeal lies from an order dismissing a suit for non-payment of additional court-fee determined by the Court and that the plaintiff can challenge the decision ot the Court on the question of court-fees in an appeal from the decree.

7. On behalf of the appellants it was sought to he contended that an order dismissing a suit is also a formal expression of adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and as such it is a decree within the meaning of Section 2(2) of the Code ot Civil Procedure. Since, however, I have hold in favour of the appellants that the order dismissing the suit in the present case amounts in law to an order of rejection of a plaint, I do not propose to pursue the point any further or to express any opinion upon it. If is to be noticed that an order rejecting a plaint is also a decree as defined by Section 2(2) of the Code of Civil Procedure. Consequently, the appeal filed by the plaintiffs against the order passed by the learned Subordinate Judge in the present case can be entertained as an appeal from an original decree.

8. I, accordingly, answer question No. 1 in the affirmative and question No. 2 in the negative.

9. As the respondents did not appear at the hearing, there would be no order as to costs ot this reference.

10. Since the reference has been made in a First Appeal, the appeal is now to be placed before the appropriate Division Bench for final decision.

Bachawat, J.

11. I agree entirely with what My Lord said just now. On the failure ot the plaintiff to pay deficit court-fees after the registration of the plaint the Court may exercise the powers conferred upon it by both Order 7, Rule 11 (c) of the Code of Civil Procedure and also by Section 8-B(3) of the Court-fees Act. Under Order 7, Rule 11 (c) of the Code of Civil Procedure the plaint shall be rejected. Under Section 8-B(3) of the Court-fees Act the suit shall be dismissed, In form, the order passed under Section 8-B (3) of the Court-fees Act is an order of dismissal of the suit. In substance, the order is an order of rejection of the plaint. Whether the suit he dismissed under Section 8-B (3) of the Court-fees Act or whether the plaint be rejected under Order 7, Rule 11 (c) of the Code of Civil Procedure, in either case there is no decision on the merits. In my opinion, the Order of dismissal of the suit under Section 8-B (3) of the Court-fees Act is, in substance, an order of rejection of the plaint and as such amounts to a decree within the meaning of Section 2(2) of the Code of Civil Procedure.

P. N. Mookerjee, J.

12. I agree in the order, proposed by My Lords.

13. This reference involves two questions, namely,

'(1) Is the order, dismissing the suit under Section 8-B (3) of the Court-fees Act (Bengal Amendment), an appealable one? and

(2) Was the decision : AIR1953Cal42 , correctly decided?'

14. The learned referring Judges were inclined to answer the first question in the affirmative and the second in the negative but as that involved a conflict with the Bench decision cited above, they made the present reference.

15. In my view, this reference should be accepted and the Bench decision of this Court in : AIR1953Cal42 , should be Overruled. The referring Judges, as I have said above, have expressed their disagreement with the said decision and, with respect, 1 entirely agree with them in their said disagreement or expression of opinion.

16. I have no doubt in my mind that the Order, dismissing the suit under Section 8-B (3) of the Court-fees Act, as amended in Bengal, is appealable as a decree, either upon the view that the said order is, in substance, an order of rejection of the plaint, as contemplated under Order 7, Rule 11, of the Code of Civil Procedure, and hence a decree under the express terms of the definition Section 2(2) of the Code, or, upon the view that, even regarded as an order of dismissal of the suit, as distinguished from a mere rejection of the plaint, it is still a decree within the said definition, satisfying as it does, all the requirements of its main part or provision. This view, in both its aforesaid branches, will be amply supported by the recent decision of the Supreme Court in : [1953]4SCR197 , where Mahajan, J., as ho then was, delivering the judgment of the Court on the construction of Section 12 of the Court-fees Act and its apparent conflict with Order 7: Rule 11 of the Code and in matters of appeal; from orders, rejecting plaints or dismissing suit; for and in case of non-payment of additional or deficit court-fees, expressed himself as follows at page 680 of the report (SCJ) : (at p. 32 of AIR):

'The construction placed on this section (Section 12) by a long course of decisions is one which reconciles the provisions of the Court-fees Act with that of the Code of Civil Procedure and does not make those provisions nugatory and is, therefore, more acceptable than the other constructions which would make the provisions of either one or the other of these statutes nugatory, Perhaps it may he possible to reconcile the provisions of the two statutes by holding that 'the finality, declared by Section 12 of the Court-fees Act, means that the parties cannot impugn such a decision by preferring on appeal but that it does not confer on such decisions a complete immunity from examination in a higher Court. In other words, Section 12 when it says that such a decision shall be final between the parties only makes the decisions of the Court on a question of court-fee non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Code and it does no more than that.' If a decision under Section 12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers. Similarly, 'when a party, thinking that a decision under Section 12 is palpably wrong, takes the risk of his plaint being rejected or suit dismissed and then appeals from the order, rejecting the plaint, or from the decree, dismissing the suit, but not from the decision on the question of court-fee, then it is open to him to challenge the interlocutory order even on the question of court-fee made in the suit' or appeal. The word 'finality' construed in the limited sense, in which it is often used in statutes, means that no appeal lies from an order of this character as such and it means no more than that.'

17. The words 'when a party, thinking that a decision under Section 12 is palpably wrong, takes the risk of his plaint being rejected or suit dismissed and then appeals from the order, rejecting the plaint, or from the decree, dismissing the suit, but not from the decision on the question of court-fee, then it is open to him to challenge the interlocutory order even on the question ot court-fee made in the suit,' which I have underlined (here into ' ') above, are directly relevant for our present purpose and they practically conclude the instant reference as, in my opinion, they were obviously referring to rejection of plaint or dismissal of suit on account of non-payment of court-fee or deficit court-fee. It is also interesting to note that Das, J. himself who delivered the judgment of this Court in : AIR1953Cal42 , and relied, in support of the view, taken by him, on the point in the said case, upon his own earlier decision, reported in 52 Cal WN 684 did actually hold, in the latter case, while commenting upon the earlier decision of this Court in : AIR1940Cal451 , and justifying and distinguishing the same, -- or, seeking so to do, -- that the order in that case : AIR1940Cal451 , which was actually one, rejecting the plaint, but which should have been one, dismissing the suit under Section 8-B (3) of the Court-fees Act, as amended in Bengal, as pointed out' by the learned Judges there, was appealable both as an order, rejecting the plaint, and also as a decree, dismissing the suit. That, in my view, was the correct approach and the correct statement of the law on the point and, in my opinion, the position in this respect was the same in Jarimon Khatoon's case as it was in and at the time of the earlier decision of this Court in Annapurna Dassi v. Sarat Chandra : AIR1935Cal157 , in spite of the 1935 Bengal Amendment of the Court-fees Act, introducing inter alia Section 6(2) and Section 8-B (3), -- and in their present forms. -- and the distinction, drawn or sought to be drawn by Das, J. in : AIR1953Cal42 , supra, in the matter of the aforesaid decision, upon or by reason of the above amendment is, to my mind, not justified.

18. In rejecting the contention that an order, dismissing the suit under Section 8-B (3) of the Court-fees Act (Bengal Amendment), was appealable. Das, J., gave two reasons in : AIR1953Cal42 namely, first, that the order is, by statute, one of dismissal and could not, therefore, be regarded as an order, rejecting the plaint, particularly, in view of Section 6(2) of the above Act, where the statute expressly provided for rejection of the plaint at the stage, contemplated under that section, in contradistinction to the dismissal of the suit in Section 8-B (3) at the later post-registration but pre-judgment stage, and, secondly, that the order of dismissal could not also be regarded as a decree within the main part of the definition Section 2(2) of the Code of Civil Procedure, as it did not decide any of the matters in controversy in the suit. In my view, -- and I say this with the utmost respect to the learned Judge, whom I have always held in high esteem and veneration, -- neither of the above two reasons can he supported. Das, J. drew a distinction between rejection of the plaint and dismissal of the suit for non-payment of court-fees and he sought to derive support for that distinction from the use of the two different expressions in the two Sections 6(2) and 8-B (3) of the Court-fees Act (Bengal Amendment). It is to be remembered, however, that, strictly speaking, rejection of plaint is appropriate only at the pre-registration stage of the suit and, at its post-registration stage, if the suit fails for any reason whatsoever, the proper or more appropriate order or expression of the same would be dismissal of the suit. So far, however, as Order VII, Rule 11 of the Code is concerned, established authorities have given the term 'rejection of plaint' the wider connotation of including also a post-registration dismissal of the suit on any of the grounds, mentioned therein, including non-payment of court-fee, and this extended sense of that term or expression has always been accepted for purposes of that particular provision. The dismissal of the suit under Section 8-B (3) of the Court-fees Act (Bengal Amendment) would, therefore, obviously, come within rejection of plaint, as contemplated in Order VII. Rule 11 of the Code, and would beappealable as a decree under Section 2(2) thereof which expressly includes such rejection within its terms. The test of decree and appealability is to be found in the Code of Civil Procedure and not in the Court-fees Act, and, therefore, the dismissal of the suit under Section 8-B (3) ot the Court-fees Act, as amended in Bengal, though in that statutory form of dismissal, -- and even conceding that rejection of plaint under that Act or, so far as that Act is concerned, would be only under Section 6(2) -- would be rejection oi plaint under Order VII, Rule 11 of the Code and thus appealable as a decree, as explained hereinbefore. This reconciles Order VII, Rule 11 ot the Code of Civil Procedure and Section 8-B (3) ot the Court-fees Act, as amended in Bengal, by equating dismissal of the suit under the one with rejection of the plaint under the other, and removes the difficulty which, otherwise, would have arisen and persisted in the matter.

19. Even otherwise, that is, treating the order in question as one of dismissal of the suit, as distinguished from an order of mere rejection of the plaint, it will, in my opinion, still be a decree, as, obviously, it amounts to a refusal ot any relief to the plaintiff in the particular suit and thus decides the familiar issue, always involved in a suit, namely, whether the plaintiff is entitled to any relief therein, against the plaintiff. The dismissal, therefore, would be a decree within the main part of the definition section, Section 2(2), of the Code also. I do not think that the above view would be opposed to any of the recognised decisions under Section 2(2) of the Code, provided the distinction is borne in mind that what is held here to be the 'decree' is not the oder, -- the interlocutory order, as it may well be termed without impropriety, -- deciding the issue of court-fee (and valuation), but the ultimate or final dismissal of the suit and that dismissal which, under the law, disposes of that particular suit, may well be held to be a decree, though the decision on a particular issue, as distinguished from the dismissal of the suit, obviously stands on a different footing and has quite rightly, more often than not, been differently construed, and provided, further, it is remembered that dismissal of the suit for non-payment ot court-fee is not a 'dismissal for default', which is excluded, -- and expressly excluded, -- from the definition of 'decree' under Section 2(2) of the Code, as such dismissal of the suit is not, in my opinion, ''an order' of dismissal for default' within the meaning of the said section and must always be distinguished and kept distinct and separate from the same.

20. The first-noted distinction, which is somewhat fundamental in character has been stressed by the Supreme Court, in Nemichand's case, : [1953]4SCR197 (supra), in the first of the above underlined (here in ' ' ) portions and, again, in the concluding lines, quoted from that judgment, and it is only necessary to keep in view that distinction for avoiding any confusion in the present matter.

21. It is also necessary to point out that the dismissal of the suit under Section 8-B (3) of the Court-fees Act (Bengal Amendment) is not adismissal on the merits in the sense of a decision, actual or constructive, on any of the other issues. It only decides that the plaintiff is not entitled to any relief in the particular suit, that is, upon the particular plaint as stamped, and that the amount of court-fee, payable on that plaint, would be as determined in that decision. To that extent, and no more, would it be res judicata. and, therefore, a fresh suit on the same cause ot action, subject of course, to the decision on court-fees, as made therein, as noted above, would not be barred. This was held as far hack as in the year 1890 in ILR 12 All 129 (FB), under the corresponding Section 10(ii) of the original Court-fees Act, and that view has ever held the field and, in the aforesaid context and upon the reasoning given above, it has not been rendered obsolete even by the change Or alteration, made in the Court-fees Act by the Bengal Amendment of 1935. or, in the definition of decree by the new Code of 1908. It may also be pointed out here that, under the very terms of Section 8-B (3) ot the Court-fees Act (Bengal Amendment), the dismissal under it must be 'before judgment is delivered'. This, indeed, is significant and it completely rules out any idea of res judicata on the merits of the suit or on its issues on the merits by reason of such dismissal.

22. I, accordingly, agree in the answers andthe order proposed by my Lords.


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