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Brahmomoyi Dasi Vs. Andi Si - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal376
AppellantBrahmomoyi Dasi
RespondentAndi Si
Cases Referred and Karman Singh v. Cockell
Excerpt:
limitation - plaint instituted within time--plaint insufficiently stamped--order to supply the deficiency not complied with within the time allowed--registration of plaint--civil procedure code9(act xiv of 1882), section 54--limitation act (xv of 1877), section 4. - .....on the 11th march 1896, one day before the expiry of the period of limitation. the court-fees were deficient, and the munsif on the 13th march ordered the deficient court-fees to be paid in within a week. they were not paid in till the 21st march, that is, until at least one day after the expiry of the time allowed by the court. objection to the suit on the ground of limitation was taken in the court of first instance, but was overruled. the objection was renewed in the lower appellate court and prevailed. the subordinate judge was of opinion that the suit could not be regarded as instituted within the period of limitation, as the 21st march, when the deficient court-fees were actually paid in, was after the period allowed by the court for their payment.3. the plaintiff appeals.....
Judgment:

Rampini and Wilkins, JJ.

1. This suit has been dismissed by the Lower Appellate Court as barred by limitation.

2. The question for determination is whether it was right in doing sp. The facts are that the suit was instituted on the 11th March 1896, one day before the expiry of the period of limitation. The court-fees were deficient, and the Munsif on the 13th March ordered the deficient court-fees to be paid in within a week. They were not paid in till the 21st March, that is, until at least one day after the expiry of the time allowed by the Court. Objection to the suit on the ground of limitation was taken in the Court of First Instance, but was overruled. The objection was renewed in the Lower Appellate Court and prevailed. The Subordinate Judge was of opinion that the suit could not be regarded as instituted within the period of limitation, as the 21st March, when the deficient court-fees were actually paid in, was after the period allowed by the Court for their payment.

3. The plaintiff appeals and contends that the Lower Appellate Court is wrong. The cases reported in Moti Sahu v. Chhatri Das (1892) I.L.R., 19 Cal., 780, and Huri Mohun Chuckerbutti v. Naimuddin Mahomed (1892)1. L.R.,20Cal., 41, are relied on; but we are of opinion that they are not in point, as they are cases in which the deficient court-fees were paid in within the time allowed by the Court. This is not the case in the present suit. We, therefore, consider that the Lower Appellate Court's decision on the question of limitation is correct and must be affirmed.

4. The pleader for the appellant, however, argues that the suit having been registered, the plaint could not be rejected, and the suit dismissed by the Subordinate Judge. He cites the case of Hubibul Hossein v. Mahomed Reza (1881) I.L.R., 8 Cal., 192, in support of this plea. But we do not agree with the view expressed by the Judges who decided this case. The terms of Section 54 are imperative and mandatory, the wording being 'the plaint shall be rejected.' Then the matter has been considered and a different conclusion come to in cases decided both in the Allahabad High Court and this Court--See Kishore Singh v. Sabdal Singh (1889) I.L.R., 12 All., 583, and Karman Sing v. Cookell (1897) 1 C.W.N., 670. Moreover, the decision in the case of Hubibul Hossein v. Mahomed Reza (1881) I.L.R., 8 Cal., 192, seems opposed to the rule apparently laid down by Section 4, Act XV of 1877, illustrations (a) and (b).

5. We do not consider ourselves bound by this decision, or that it is necessary to refer the conflicting decisions in Hubibul Hossein v. Mahomed Reza (1881) I.L.R., 8 Cal., 192, and Karman Singh v. Cockell (1897) 1 C.W.N., 670, to a Pull Bench, as the rule enunciated in the former case appears to us to be an obiter dictum, the case having been disposed of on an altogether different point.

6. For these reasons, we dismiss this appeal with costs.


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