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Budhan Shah Vs. Sita Nath Shah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.578
AppellantBudhan Shah
RespondentSita Nath Shah
Cases ReferredAmir Hussain v. Nanhak Chand
Excerpt:
civil procedure code (act v of 1908), sections 148, 149 - enlargement of time by court--court-fee, power to make up deficiency of--small cause court--registrar, power of, to enlarge time. - .....the plaintiff. in that case, the plaint was filed on the 8th february 1905. the court granted the plaintiff time till the 15th february, but the deficiency was not made up till the 16th february. the court, however, ordered that the petition for time though late by one day might be filed. such petition was filed on the 16th february and the case was registered on that date. in that case, therefore, there were materials on the record to show that there was an order for enlargement of time expressly made by the court upon an application by the party. we must hold, therefore, that the order made by the learned judge on the 11th march 1910 cannot be supported. his view that section 149 has brought about a change in the law so as to entitle a plaintiff (who has obtained time under section.....
Judgment:

1. We are invited in this Rule to set aside an order made by the Judge of a Court of Small Causes under Section 114 read with Order XLVII, Rule 1 of the Code of 1908. The effect of the order is to set aside on review a decree by which the learned Judge had dismissed a suit as barred by limitation. There has been no controversy as to the facts before us, The suit was filed on the 4th September 1909 and the claim was valued at Rs. 150. The Court-fee paid on the plaint was Rs. 6 only, whereas the amount payable was Rs. 11-4. Thereupon the learned Judge recorded the following order on the 8th September: The deficit Court-fee stamp worth Rs. 5 to be filed in one week.' It will be observed that the amount of deficit Court-fee was incorrectly stated, as the deficiency was Rs. 5-4. The Court-fee was deposited not within the time allowed, but on the 18th September. No order appears to have been made on that day; but on the 20th September, the Registrar of the Court recorded the following order: 'The deficit Court-fee filed; register.' Subsequently, it appears to have been discovered that the Court-fee was still deficient by four annas, and on the 28th September the deficiency was made up. When the suit came on for trial, an objection was taken on behalf of the defendant that the claim was barred by limitation, because the goods were sold on the 6th September 1906 and the plaint must be taken to have been filed on the 18th, if not on the 28th September 1909. The learned Judge upheld this contention and dismissed the suit, on the authority of the decision of this Court in the case of Padmanund v. Anant Lal Misser 34 C. 20 : 4 C.L.J. 421 : 11 C.W.N. 38 : 1 M.L.T. 355 (F.B.). Subsequently, an application was made to him to review his judgment and his attention was invited to the provisions of Section 149 of the Code of 1908. He held on the 11th March 1910 that the section mentioned had effected a change in the law, and the plaint must be considered to have been filed on the 4th September 1909. In this view, he granted the application for review and directed the suit to be re-heard on the merits; this last order we are now invited to set aside. In our opinion, there is no room for doubt that the learned Judge has taken an erroneous view of the effect of Section 149 and that his order cannot be supported.

2. Section 149 provides that where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fee has not been paid, the Court may, in its discretion at any stage, allow the person by whom such fee is payable to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document in respect of which such fee is pay-able shall have the same force and effect as if such fee had been paid in the first instance. This provision is obviously of no assistance to the plaintiff. Here, the fee prescribed for the plaint was admittedly not paid in full. The Court in its discretion called upon the plaintiff to pay the deficiency within a time fixed by it. If that order had been carried out and the deficiency had been made up, under Section 149 the plaint would have been operative in the same way as if the fee had been paid in the first instance. This order of the Court, however, was not carried out. Obviously, therefore, Section 149 does not assist the plaintiff. But it is suggested that under Section 148, the Court had the power to enlarge the time originally fixed for the payment of the deficit Court-fees and that the order of the 20th September 1909 may be interpreted in that sense. In our opinion, there is no foundation for this contention. In the first place the order was made not by the Judge of the Court of Small Causes, but by the Registrar. The first question, therefore, which arises, is, whether the Registrar of the Court of Small Causes was competent to make an order under Section 148, even if it be assumed that he intended to make an order under that section.

3. Section 12 of the Provincial Small Cause Courts Act of 1887 provides for the appointment of a Registrar and lays down that where a Registrar is appointed he shall be the chief ministerial officer of the Court. Under Sub-Section (3) of that section, the Local Government may, by order in writing, confer upon a Registrar the jurisdiction of a Judge of a Court of Small Causes for the trial of suits of which the value does not exceed Rs. 20. Sections 18 to 22 define the powers and functions of the Registrar. Section 18 deals with the question of trial of suits by the Registrar. Section 19 upon which special reliance is placed on behalf of the plaintiff, deals with the question of admission, return and rejection of plaints by the Registrar. Section 20 authorises the Registrar to pass decrees on confession in certain cases. Section 21 treats of execution of decrees by the Registrar and Section 22 allows the Registrar power to adjourn cases in some specified contingencies. It is clear, therefore, that the object of the Legislature was to define accurately and exhaustively the powers and functions of the Registrar and to make special provisions in that behalf. Now so far as Section 19 is concerned, Sub-section (1) provides that when the Judge of a Court of Small Causes is absent and an Additional Judge has not been appointed or having been appointed is also absent, the Registrar may admit a plaint or return or reject a plaint for any reason for which the Judge might return or reject it. Sub-section (2) then provides that the Judge may of his own motion or on the application of a party, return or reject a plaint which has been admitted by the Registrar or admit a plaint which has been returned or rejected by him. To this sub-section, is attached a proviso that in ordinary course, the party, who is dissatisfied with the order of the Registrar in the matter of admission, return or rejection of a plaint, must apply to the Judge on the first day on which he sits in Court after the order has been made by the Registrar. It has been contended on behalf of the plaintiff that as the Registrar is authorised to admit or reject a plaint, it is competent to him to make an order for enlargement of time under Section 148 of the Code of 1908 when an order made by the Judge under Section 149 has not been carried out by the parties concerned. But it is obvious that an order for enlargement of time under Section 148 cannot by any stretch of language be deemed an order for the admission or rejection of a plaint. It has been suggested, however, by the learned Vakil for the plaintiff that the Registrar has, by implication, the power to make an order under Section 148 inasmuch as such an order may be a prerequisite to the admission or rejection of a plaint. In support of this view, reliance has been placed upon Ex parte Martin 4 Q.B.D. 212 and 491. In that case it was ruled that where an inferior Court is empowered to grant an injunction, the power to punish disobedience to such injunction is also impliedly conferred, for the power to grant the injunction would be useless if it could not be enforced. It was pointed out by Chief Baron Kelly that if it was competent to a Court to grant an injunction, it was also competent to the Court to enforce the injunction, because if a Court had the power to prohibit a wrong, it should also have the power to enforce its prohibition; and it was difficult to conceive that the Legislature intended to give the power to grant an injunction and yet did not intend to give the power to enforce it. Similarly, Lord Justice Barnwell observed that the inflicting of punishment for disobedience to injunction granted by the Court was part of the remedy; in other words, the remedy consists of an injunction and consequent attachment. This principle has no application to the case before us, because the making of an order under Section 148 for enlargement of the time, within which the Court-fee might be paid, can in no sense be treated as necessary to enable the Registrar to admit or reject the plaint. Under Order VII, Rule 11 of the Code, the plaint in a suit shall be rejected in four cases to one of which only reference need be made for our present purpose, namely, where the relief claimed is properly valued but the plaint is written on 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. In the case before us, the relief in the plaint was properly valued, but it was written on paper insufficiently stamped. The plaintiff was required by the Judge to supply the requisite stamp paper within a time fixed, but he failed to do so. It was, therefore, open to the Registrar to reject the plaint under the section. Under these circumstances, we must hold that it was not competent to the Registrar to make an order under Section 148 for enlargement of time.

4. In the second place, it is reasonably plain that the Registrar never intended to make an order under Section 148. The learned Vakil for the plaintiff has contended that the order recorded by the Registrar namely, the deficit Court-fee filed; Register,' admits of the interpretation that the attention of the Registrar was invited to the circumstance that the previous order of the Court had not been carried out within the time allowed and that he was, therefore, called upon to exercise such discretion as might be supposed to have been vested in him under Section 148. That this was not so is manifest from the events which subsequently happened, namely, that when objection was taken at the hearing on the ground that the suit was barred by limitation, there was no suggestion that the attention of the Registrar had been drawn to the default and that with full knowledge of what had taken place, he made the order for enlargement of time under Section 148. The case, therefore, falls clearly within the scope of the decision of the Full Bench in Padmanund Singh v. Ananta Lal Misser 34 C. 20 : 4 C.L.J. 421 : 11 C.W.N. 38 : 1 M.L.T. 355 (F.B.). In that case a plaint had been filed on an insufficiently stamped paper on the 23rd June, and time was given up to the 5th July to make up the deficiency. There was no further application for extension of time, but the deficiency was made up on the 9th July, on which date the plaint was verified and then registered. It was contended on behalf of the plaintiff that when the plaint was registered on the 9th July after he had been allowed to make up the deficiency, the order ought to be interpreted as one by implication for enlargement of time. This view was not accepted by the majority of the learned Judges who composed the Full Bench and is also in accord with that taken in the case of Brahmomoyi Dasi v. Andi 27 C. 376 and Hara Kumar Pal Chowdhury v. Safatulla 2 C.L.J. 70 : 9 C.W.N. 844. In our opinion, when a parly asks for an indulgence of this description and invites the Court to make an order under Section 149 or under that section read with Section 148, an application should be made to the Court, and the record ought clearly to indicate that all the circumstances have been brought to the notice of the Court and the Court with full knowledge thereof has in the exercise of its discretion made an order entitling the plaintiff to make up the deficiency within the time fixed under Section 149 or within any additional period allowed under Section 148. The decision of this Court in the case of Amir Hussain v. Nanhak Chand 12 C.L.J. 62 : 6 Ind. Cas. 424 : 14 C.W.N. 882 is clearly distinguishable and is of no assistance to the plaintiff. In that case, the plaint was filed on the 8th February 1905. The Court granted the plaintiff time till the 15th February, but the deficiency was not made up till the 16th February. The Court, however, ordered that the petition for time though late by one day might be filed. Such petition was filed on the 16th February and the case was registered on that date. In that case, therefore, there were materials on the record to show that there was an order for enlargement of time expressly made by the Court upon an application by the party. We must hold, therefore, that the order made by the learned Judge on the 11th March 1910 cannot be supported. His view that Section 149 has brought about a change in the law so as to entitle a plaintiff (who has obtained time under Section 149 and has failed to carry out the order of the Court) to make up the deficiency on a subsequent day without an order for enlargement of time under Section 148, cannot possibly be maintained. The result, therefore, is that the rule must be made absolute and the order of the Small Cause Court Judge set aside.

5. The question next arises, what further order should be made in the case. On behalf of the plaintiff it has been contended that even if the plaint be treated as presented on the 18th September 1909, the suit is not barred by limitation. On behalf of the defendant it has been argued that this question was raised at the original trial and was decided against the plaintiff. Reference has in this connection been made to a paragraph in the written statement in which the defendants denied the allegation that there was an agreement between the parties that the money would be paid within one month of the date of the delivery of the goods. But it is obvious from an examination of the written statement as a whole and from the proceedings in the Court below that this question was raised, not with reference to the ground of limitation but in answer to the claim for interest. The allegation of the plaintiff was that interest was to run after the expiry of one month from the date of the delivery of the goods and he supported this position on the theory that the defendant was allowed time to pay up the price of the goods sold. The learned Judge was never invited to consider, whether there was this agreement and whether it could remove the bar of limitation. As the question of limitation was not raised in the written statement and as the plaintiff may have been taken by surprise, we think that the proper order to make is to set aside the original decree as well and to direct the Judge to retry the case. The first question to be considered will be the question of limitation. If the plaintiff establishes that there was an agreement by the parties for payment of the value of the goods within one month from the date of delivery, the suit is not barred by limitation. If, on the other hand, this allegation is not established, the suit will be dismissed. The petitioner is entitled to his costs in this Court. We assess the hearing fee at one gold mohur.


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