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Jnanadasundari Shaha Vs. Madhabchandra Mala - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal482
AppellantJnanadasundari Shaha
RespondentMadhabchandra Mala
Cases ReferredRup Singh v. Mukhraj Singh
Excerpt:
- .....then on 23rd december 1930, an appeal was filed before the district judge against the personal decree passed on 13th june 1930, on a court-fee of re. 1 only out of rs. 135 payable on the memorandum. time was granted by the district judge to file the deficit court-foe till 6th january 1931. the deficit court-fee not having been put in, on 7th january 1931, the following order was passed:the deficit court-fee stamp has not been put in. the memorandum of appeal is rejected.2. on 8th january, the opposite party again prayed for seven days' time to file the deficit court-fee stamp, and the prayer was granted. the stamp was supplied on 10th january and, on 17th january 1931, the next order was passed by the judge in these words:register. let notices issue to the respondents and fix 24th.....
Judgment:

Suhrawardy, J.

1. This matter arises under the following circumstances: In a mortgage suit, after the preliminary and final decrees, a personal decree was passed against the opposite party on 13th June 1930. On 31st July 1930, an application for amendment was made by him, which was rejected on 28th August 1930. The High Court was unsuccessfully moved against that order on 5th December 1930. Then on 23rd December 1930, an appeal was filed before the District Judge against the personal decree passed on 13th June 1930, on a court-fee of Re. 1 only out of Rs. 135 payable on the memorandum. Time was granted by the District Judge to file the deficit court-foe till 6th January 1931. The deficit court-fee not having been put in, on 7th January 1931, the following order was passed:

The deficit court-fee stamp has not been put in. The memorandum of appeal is rejected.

2. On 8th January, the opposite party again prayed for seven days' time to file the deficit court-fee stamp, and the prayer was granted. The stamp was supplied on 10th January and, on 17th January 1931, the next order was passed by the Judge in these words:

Register. Let notices issue to the respondents and fix 24th February 1931, next for hearing. Costs and notices to be put in within seven days.

3. On 24th February 1931, the order passed runs thus:

Notices served. Services proved. Respondent 1 enters appearance and files an objection stating that the appeal is time-barred. Let this objection be put up in presence of the pleaders on 12th March 1931. Inform pleaders.

4. On 12th March 1931, the order passed was:

Pleaders heard for the respondent. The explanation of the appellant for delay is reasonable and there is no reason why time should not be extended. The objection is rejected with costs. Pleadur's fee Rs. 16.

5. Against this order the present rule has been obtained by the respondent in the Court below and the ground which has been pressed by the petitioner is that the orders of the learned District Judge after he had finally rejected the memorandum of appeal on 7th January 1931, were all passed without jurisdiction and in support of this contention it is argued that the order of 7th January 1931, had the same effect as an order passed by an original Court, under Order 7, Rule 11, Civil P.C. Under that rule, a trial Court shall reject a plaint whore the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within the time to be fixed by the Court, fails to do so. Such an order is a decree as defined in Section 2 of the Code, and it is submitted that by virtue of the provisions of Section 107 (2), the order passed by the Judge on 7th January 1931, should also have the force of a decree and that the order can only be set aside by appeal or review and that the Judge had no jurisdiction to ignore it and to receive subsequently the memorandum of appeal. I find it difficult to accede to this view of the law for in the first place it is not a case where the relief claimed was under-valued and the plaintiff was asked to put in the court-foe upon proper valuation, but it is a case where the appellant deliberately put in insufficient court-fee upon the memorandum of. appeal which was valued properly. In the second place Section 107 (2) invests an appellate Court with the same powers as are conferred on a Court of original jurisdiction. It does not purport to give the order passed by an appellate Court the same effect as an order passed by an original Court of a like nature. Section 2 expressly Rays that ' decree ' shall be deemed to include the rejection of a plaint. If it was the intention of the legislature to include within the definition of 'decree' an order rejecting a memorandum of appeal, it would have expressly said so.

6. But it is not necessary to go into this matter further, because, in view of the provisions of Section 107 (2), an appellate Court is invested with all the powers of an original Court and has accordingly the same powers as are conferred upon an original Court under Order 7, Rule 13, which says that the rejection of a plaint shall not preclude the plaintiff from presenting a fresh plaint in respect of the name cause of action. Applying this provision mutatis mutandis to the case of appeals the rejection of a memorandum of appeal by the appellate Court shall not, of its own force, preclude the appellant from presenting a fresh memorandum on proper court-fee. In this view it would seem that the order passed by the learned Judge on 17th January 1931 was an order receiving a fresh, memorandum of appeal from the appellant and registering the appeal. I. am inclined to hold that after the rejection of the memorandum of appeal, the proper court-foe having been paid, the memorandum thus brought in order should be taken to have been presented afresh by the appellant on 17th January 1931.

7. In view of the decisions of the Judicial Committee in Krishnasami Panikondar v. Ramasami Chettiar A.I.R. 1917 P.C. 179 and Sunderabai v. Collector of Belgaum A.I.R. 1918 P.C. 135 the learned Judge should not have registered the appeal without deciding the question as to whether the appellant was entitled to extension of time under 'S. 5, Limitation Act. But, as is observed in Krishnasami Panikondar's case A.I.R. 1917 P.C. 179 in an order like this, there is a tacit term that the question under Section 5, Limitation Act, will be considered on objection being taken by the respondent. In the present case such objection was taken on 24th February 1931, and the learned Judge, by his order of 12th March 1931, overruled that objection and held that the explanation of the appellant for the delay was reasonable and that there was no reason why time should not be extended. It cannot therefore be said that the order of 12th March 1931, was passed without jurisdiction. It may be that the order was not explicit as to the ground on which time was extended, or that, under the circumstances of this case, the order was wrong, but that may be a matter for a higher appellate Court, but it cannot, for those reasons, be said that the order was passed without jurisdiction. 1 should however observe that an order passed extending time under Section 5, Limitation Act, should give sufficient Indication that the discretion given by the law has been judicially exercised.

8. Before parting with this case, I should like to impress upon the Courts below the necessity of avoiding committing certain irregularities. The procedure adopted by the lower appellate Court in this matter of receiving the memorandum of appeal presented on 23rd December 1930, with a court-fee of Re. 1, which was, on the face of it, insufficient, was without jurisdiction. In Ram Sahay v. Lachmi Narayan [1917] 3 Pat. L.J. 74 Lekh Ram v. Ramji Das [19201 1 Lah. 234 Akkaraju Narayana Rao v. Akkaraju Seshamma A.I.R. 1915 Mad. 426 and in other cases, it has boon held, dissenting from the view taken by the Bombay High Court in Achut Ramchandra v. Nagappa Bab Balgya A.I.R. 1914 Bom. 249 that the provisions of Section 149 are intended to apply to cases of bona fide mistakes in valuation and not to cases where a party consciously and intentionally puts insufficient court-fee on a document in an attempt to avoid the law of limitation. This practice has been condemned in Brijbhukhan v. Tata Ram : AIR1929All76 where the proper procedure is pointed out that, in such cases, the memorandum of appeal should at once be returned to the party presenting it. This view appeals to me as correct. In Faizullah Khan v. Mauladad Khan A.I.R. 1929 P.C. 147 though the point before us was not under consideration, some observations made by their Lordships are to the point. In dealing with appeals presented in that case with insufficient court-fee, their Lordships remarked:

They (appeals) were documents duly presented to and accepted by the Court, and as to the fee thereon, should the valuation be unsatisfactory or in the end insufficient, that is validated by additional payment, the result of. which payment is that the document, namely, the memorandum of appeal, stands good from its date.

9. The procedure hero suggested is what this Court has laid down for the guidance of its office here.

10. One other matter, which I like to impress upon the Courts below, is that in 'all cases where an appeal is presented beyond the period of limitation, notices 'ought to be issued, before registering it, upon the respondents and the question of extension of time under Section 5, Limitation Act should be determined before such registration. This is the practice 'which is invariably followed in this Court.

11. In the view however I have taken, I am not prepared to hold that the order passed by the learned Judge, on 12th March 1931, is without jurisdiction, and, therefore we are not inclined to interfere under Section 115. But I do not think that, in the circumstances of this case, the learned Judge should have allowed costs against the respondents. The appeal was apparently filed long after the period of limitation and the respondent cannot be blamed for his objection that it should not be registered. That portion of the order awarding costs against the petitioner is set aside. With this modification the Rule stands discharged. There will be no order as to costs.

Graham, J.

12. I agree that the Rule should be discharged. The main contention on behalf of the petitioner was that the order of 7th January 1931, rejecting the memorandum of appeal was a final order, that it amounted to a decree, that the District Judge was therefore functus officio and had no jurisdiction to make the subsequent orders) granting time for payment of the deficit court-fee and eventually allowing the appeal to be registered. The argument employed is that, under Section 2, Civil P. C, the definition of 'decree' includes rejection of a plaint. It is therefore contended that the provision relating to a plaint applies equally to a memorandum of appeal by virtue of those provisions of the Code which make provisions relating to suits applicable to appeals. This view has in fact been taken by the Allahabad High Court in the case of Rup Singh v. Mukhraj Singh 1886] 7 All. 887; I find too in Mullah's Civil Procedure Code a note to this effect under Section 2:

It is provided by the present section that decisions rejecting plaints shall be deemed to be decrees. The provisions of this and other sections relating to suits apply to appeals, so far as such provisions are applicable: (S. 108). Hence the decision rejecting the memorandum of appeal on the ground that it is barred by limitation, or is insufficiently stamped, or that it was not duly presented, is appealable as a decree.

13. Now, looking to Section 108 of the Code, I find it is there stated:

The provisions of this part relating to appeals from original decrees shall, so far as may be, apply to appeals,

the words 'the provisions of this part' meaning those of part 7 of the Code in which this particular section occurs, and the section apparently has nothing to do with Section 2 of the Code which is in the preliminary part of the Code. Section 107 of the Code also appears to me to have no bearing on the point. If the legislature had intended that the rejection of a memorandum of appear should also be deemed to be a decree, it would have been an easy matter to say so. I can find no authority in the Code for holding that such an order is a decree and therefore a final order.

14. The question then is, what is the effect of an order rejecting a memorandum of appeal. As I understand the word 'rejection' it means refusal to entertain, or receive. But it does not necessarily imply that the Court which rejects ' or refuses, for some reason or other, to entertain a memorandum of appeal, has not got power to admit it, provided the defect, whatever it may be, is made good. If that be so, the District Judge must be held to have had jurisdiction to make the subsequent orders. He undoubtedly had a discretion to extend the time for filing the appeal under Section 5, Limitation Act, and he exercised that discretion and after hearing the parties ordered the appeal to be registered. His order might, as my learned brother has observed, have been more explicit, but it does not appear to me that there is any sufficient ground for our interference in revision beyond the modification which my learned brother has made.


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