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Midnapur Zemindary Company Limited of Kuthi Shikapur Vs. Dayardra Nath Bhowmik and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in96Ind.Cas.433
AppellantMidnapur Zemindary Company Limited of Kuthi Shikapur
RespondentDayardra Nath Bhowmik and ors.
Cases ReferredGangadhar Karmakar v. Shekkar Basini Dasya
Excerpt:
court fees act (vii of 1870), sections 6, 28, scheduled i, articles 4, 5 - review, application for--court-fee payable--application bearing deficient stamp--deficiency made up after expiry of limitation, effect of. - .....fees act that the proper stamp was either half the amount or the whole according as to within what time the applications for review were presented. now, it appears that the judgments were signed on the 31st august, 1922. four days would be allowable' for taking copies of the judgments. the last date, therefore, for filing the applications was the 3rd december, 1922, and the question, therefore, is whether any proper applications were made within that time. as we have already stated, the applications were filed with the stamps which we, have stated on the 24th november, 1922. but according to the provisions of section 6 of the court fees act they were not entitled to be filed, exhibited or recorded in any court of justice unless proper fees had been paid. but by the provisions of section.....
Judgment:

Ewart Greaves, J.

1. A preliminary objection has been taken on the hearing of these Hales that the requisite Court-fee was not paid and that accordingly they are barred by limitation, no proper application for revision having been made within the period of 90 days or within such further period as may be allowed for taking copies of the judgment and decree. It appears that there are two Rules and two applications for review of judgments. These were filed 11 days after the re-opening of the Court after the long vacation, namely, on the 24th. November 1922. They were all stamped with a Court-fee stamp of Rs. 2. These, stamps were adequate for, the Rules but were, inadequate in respect of the applications, as clearly these should have been stamped either with half the value if presented within 89 days, or with the full value if presented after 90 days, that is to say, within the additional period allowed for taking copies. Clearly, therefore, there could have been no mistake or inadvertence with regard, to the stamp paid on these two applications, for, it is perfectly clear from Scheduled I. Articles (4) and (5) of the Court Fees Act that the proper stamp was either half the amount or the whole according as to within what time the applications for review were presented. Now, it appears that the judgments were signed on the 31st August, 1922. Four days would be allowable' for taking copies of the judgments. The last date, therefore, for filing the applications was the 3rd December, 1922, and the question, therefore, is whether any proper applications were made within that time. As we have already stated, the applications were filed with the stamps which we, have stated on the 24th November, 1922. But according to the provisions of Section 6 of the Court Fees Act they were not entitled to be filed, exhibited or recorded in any Court of Justice unless proper fees had been paid. But by the provisions of Section 28 of the same Act any document insufficiently stamped through mistake or inadvertence can, if so allowed by any Judge of the High Court, be used in any proceeding and treated as valid if it had been properly stamped in the first instance. Now, on the 14th December, 1922 the requisite Court-fee was paid and on that date these two applications were properly stamped. On the 19th December the Stamp Reporter certified thereon that they were in order, that they were not barred by limitation and so on and the argument directed to us on behalf of the petitioners is that inasmuch as they were presented to the Stamp Reporter on the 24th November even if insufficiently stamped, they should have been taken to have been preferred within time. I do not see how this argument can prevail having regard to the provisions of Section 6 of the Court Fees Act unless the provisions of Section 28 of that Act can be prayed in aid on behalf of the petitioners. But, in my opinion, there was no mistake or inadvertence which would justify us in saying under the circumstances that these applications should be treated as if they had been made within time. We have already referred to the clear provisions of Schedules I Articles (4) and (5) of the Court Fees Act and any one reading these provisions must have known that the applications were inadequately stamped when they were presented on the 24th November, 1922. We have been referred to various cases, but none of them seems to me really to be in point or to assist the case for the petitioners. It is not necessary to travel over all of them. The first case, however, to which we were referred and which is the earliest in date is the case of Syud Ambur Ali v. Kali Chand Doss 24 W.R. 258. No doubt, Mr. Justice Mark by in delivering the judgment of the Court, stated that the applications in that case must be treated as having been filed on the 14th June, although they were insufficiently stamped and he held that they were in time notwithstanding this. But, in that case when they were filed on the 14th June the Deputy Registrar considered that the stamp on the petition of appeal was insufficient and the Taxing Officer took a different view.

2. Accordingly, there was a genuine mistake or inadvertence which could be prayed in aid on behalf of the petitioners. But it is not so in the present case. The last-case in order of date to which we were referred is the case of Nowrang Singh v. Janardan : AIR1924Cal994 . In that case an application for review of judgment and decree was made on the 6th September, 1922 on a paper bearing one half of the Court-fee paid on the memorandum of appeal, that is, on the 89th day from the date of the decree. The application was returned by the Stamp Reporter on the same day when the High Court closed for the long vacation and it was not until the Court re-opened on the 13th November, 1922 that an application could be made to the learned Judges and it was there held that the presentation to the Stamp Reporter was presentation within the meaning of Articles 4 and 5 of Scheduled I of the Court Fees Act. But we do not think that that case again helps the petitioners. There half the Court-fee was paid and not as here merely a Court-fee of two rupees and accordingly, there was a genuine mistake or inadvertence with regard to the proper Court-fee to be paid on the application and on the very earliest date an application was made to the Court who was the only body who could deal with the matter and it was held that under those circumstances, presentation on the 6th September, 1922, must be taken to be presentation within the meaning of the Schedule to the Court Fees Act. But as appears from what we have already stated here, the applications were presented with stamps that were known to be inadequate on the 24th November, 1922, and it was not until the 14th December, 1922, that the applications were properly stamped, long after the 90 days had passed within which the applications had to be made and long after the additional period allowable under Section 12 of the Limitation Act had elapsed. It was faintly suggested to us that it might be that there might have been soma difficulty in applying for a copy of the decree, although it was not necessary for the purposes of the review applications and it is stated that having regard to the decision of this Court in Gangadhar Karmakar v. Shekkar Basini Dasya 35 Ind. Cas. 348 : 20 C.W.N. 967 : 24b C.L.J. 235, that even though the copy of a decree was not necessary for the purposes of a review application, the petitioners were entitled to add the period necessary for obtaining a copy of a decree and that as it did not appear what time was necessary for obtaining the copy of the decree, the matter should stand over in order that it might be ascertained. Surely, it was the duty of the petitioners, who ask us to say that notwithstanding the applications were not properly stamped until the 14th of December, 1923, to supply us with the necessary materials to enable us to arrive at a decision on that point. The burden was on them to do so and notwithstanding a long period had elapsed before the applications were presented, they have failed to do so and we do not see why further time should be given to the petitioners to ascertain the period which was taken for obtaining a copy of the decree. Under the circumstances, we think that the preliminary objection must prevail and having regard to the provisions of Section 6 of the Court Fees Act the review applications, although presented on the 24th November, 1922, were not within time as they were not properly stamped on that date and there was no mistake or inadvertence which would bring them within the provisions of Section 28 of the, Court Fees Act.

3. The result is that the Rules are discharged and the applications refused with costs hearing fees, three gold mohurs in each case.

Duval, J.

4. I agree.


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