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Dwarka Nath Biswas Vs. Kedar Nath Biswas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in2Ind.Cas.1
AppellantDwarka Nath Biswas
RespondentKedar Nath Biswas
Cases ReferredStuart Skinner v. William Orde L.R.
Excerpt:
court-fee, insufficient - time given by court to pay--expiry of time originally granted--enlargement of time--power of court--institution--day when plaint originally filed. - .....for the doing of any act prescribed or allowed by this code, the court may in its discretion from time to time enlarge such period, even though the period originally fixed or granted may have expired.' one of the acts allowed by the code, is under order 7, rule 11, to require the plaintiff to supply the requisite stamp paper when the plaint is written upon paper insufficiently stamped. we have, therefore, here a legislative approval of the long series of judicial decisions which began with the case of badri narain v. sheo koer l.r. 17 i.a. 1 : 17 c. 512.6. as regards, the second question the answer must clearly be in favour of the appellant. it was pointed out by their lordships of the judicial committee in stuart skinner v. william orde l.r. 6 i.a. 126 : 2 a. 241 at p. 250 that when a.....
Judgment:

Mookerjee, J.

1. This is an appeal on behalf of the plaintiff in an action for recovery of money. In proof of his claim the plaintiff relied upon an acknowledgment alleged to have been given by the defendant on the 10th April 1903, The suit was commenced on the 10th April 1906, that is, on the very last day prescribed by the Limitation Act for its institution. The plaint was insufficiently stamped and the Court on that day granted the plaintiff time till the 17th April to put in the deficit Court fees. This order apparently was not carried out and on the 18th April the plaintiff asked for an enlargement of the time within which he might pay the Court-fees. This application was, granted and the Court allowed the plaintiff to pay the Court-fees on or before the 28th April. The Court-fees- were actually paid on the 23rd April and the case was then allowed to proceed.

2. The Court of first instep held upon the evidence, that the acknowledgement alleged by the plaintiff was made out and decreed the suit. Upon appeal the Subordinate Judge has dismissed the suit an the ground that it was barred by limitation. He has out that the order of the Court for of Court-fees was not carried out within the time first allowed, that consequently there was, as he puts it, a breach in the continuity of the proceedings and that, therefore, the suit must be taken to have, been commenced on the 23rd April 1906 when the Court-fees were actually paid. In support of this view he has placed reliance upon the principle deducible from the decision of a Full Bench of the Court in the cage of Padmanand Singh v. Anant Lal Misser 34 C. 20 and upon the dictum at the learned Judges of the Allahabad High Court in Muhammad Ahmad v. Muhmmad Sirajuddin 23 A. 423 at p. 426.

3. As regards the first of these cases, it is quite clear that the principle deducible deducible therefrom has no application to the circumstancesof the present litigation. In that case the plaint had been originally presented insufficiently stamped. The plaintiffs were directed by the Court to pay the deficit Court fees within a time prescribed. The order of the Court was not carried out. The plaintiffs did not ask for any extension of time nor was any order in that behalf made by the Court. Court-fees, however, were supplied after the expiry of the time allowed by the Court and the plaint was directed to be admitted and registered. When the case came to be heard the Court was invited to reject the plaint. The question, therefore, which arose was whether it was competent to the Court to reject the plaint under Section 54 (b) of the Code of Civil Procedure of 1882 after the plaint had been admitted and duly registered. The Full Bench answered this question in the affirmative and held that it was competent to a Court to reject a plaint although it had been admitted and duly registered. The question now before me is of an entirely different description. No question here arises as to the power of the Court to reject the plaint. The question which calls for decision is whether the suit is barred by limitation and whether it was competent to the Court after the expiry of the time initially granted to enlarge the time for payment of the deficit Court-fees. The case relied upon, therefore, has no application, either direct or indirect, to the question which has to be decided.

4. As regards the other case upon which reliance was placed by the learned Subordinate Judge, it may be conceded that there is one observation in the judgment which lends some support to his view. The learned Judges say that it is not competent to the Court to fix a time for payment of additional Court-fees so as to extend the prescribed period for limitation of suits. I am unable to hold that this view is well founded and I may point out that the learned Subordinate Judge has overlooked the fact that so far as this dictum is concerned, the decision has been overruled by a Full Bench of the Allahabad High Court in the case of hari Ram v. Akbar Hussain (3), in which it was ruled that when it is discovered that owing to mistake or inadvertence the plaint was fled on an insufficient Court-fees stamp, the Court on discovering the mistake can grant time without regard to limitation for payment of the deficit Court-fee and,(3) 29A. 749. when it is paid, regard the plaint as if it had been properly stamped when initially presented. It follows consequently that the first case upon which the learned Subordinate Judge relied does not really support his view; whereas the second case upon which he relied has been subsequently overruled by a Full Bench of the very Court which gave that decision. But, apart from authorities, looking at the case from the point of view of principles which are now firmly settled by a long series of decisions of this Court, there can, in my opinion, be no question that the view taken by the Subordinate Judge is erroneous and cannot be maintained.

5. The question for decision resolves itself into two parts, first, whether it was competent to the Court upon the expiry of the period for payment of deficit Court-fees to enlarge the time; and secondly, if it was competent to the Court to enlarge the time, whether upon payment of deficit Court-fees the suit must be taken to have been instituted on the day when the plaint was originally filed. Now, so far as the first of these questions is concerned, the principle deducible from the decision of their Lordships of the Judicial Committee in Badri Narain v. Sheo Koer (4) is unquestionably in favor of the appellant. That view has subsequently been followed, by this Court in Raj Kishori Koer v. Madan Mohan Singh (5), by the Allahabad High Court in Ghunni Lal v. Ajudhia Prasad (6) and by the Bombay High Court in Bhagwandas Bagla v. Haji Abu Ahmed (7). The principle is that a Court has the power to enlarge the time for the payment of deficit Court-fees either within or after the expiry of the period originally granted for the purpose. It may, further, be pointed out that this principle has now been recognized by the Legislature in Section 148 of the Code of 1908 which provides as follows : When no period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may in its discretion from time to time enlarge such period, even though the period originally fixed or granted may have expired.' One of the acts allowed by the Code, is under Order 7, Rule 11, to require the plaintiff to supply the requisite stamp paper when the plaint is written upon paper insufficiently stamped. We have, therefore, here a legislative approval of the long series of Judicial decisions which began with the case of Badri Narain v. Sheo Koer L.R. 17 I.A. 1 : 17 C. 512.

6. As regards, the second question the answer must clearly be in favour of the appellant. It was pointed out by their Lordships of the Judicial Committee in Stuart Skinner v. William Orde L.R. 6 I.A. 126 : 2 A. 241 at p. 250 that when a wrong stamp is put upon the plaint originally and the proper stamp is afterwards affixed, the plaint is not converted into a plaint from that time only bat remains with its original date on the file of the Court and becomes free from the objection of improper stamp when the correct stamp has been placed upon it. This view has subsequently been adopted by this Court in Moti Sahu v. Chhatri Das 19 C. 780 Hari Mohan Chukerbutti v. Naim-ud-din Mohamed 20 C. 41; Surendra Kumar Basu v. Kunja Behari Singh 27 C. 814 and Raj Kosher Koer v. Madan Mohan Singh 31 C. 75. My attention, however, has been invited to the decision of this Court in Bruhmomoyi Dasi v. Andi Si 27 C. 376 which might at first sight appear to be an authority in support of the contrary view. It is hardly necessary to say that if the decision in question does lay down any principle which is inconsistent with the decision of the Judicial Committee in Stuart Skinner v. William Ordc L.R. 6 I.A. 126 : 2 A. 241 at p. 250 it cannot be treated as an authority binding upon this Court. In my opinion, however, it does not profess to lay down any principle inconsistent with rule formulated by their Lordships of the Judicial Committee. In that case the plaint was filed one day before the expiry of the period of limitation with insufficient Court-fees and the plaintiff was directed by the Court to pay the deficit Court-fees within a week. This order was not carried out and the fees were deposited one day after the expiry of the time without any application for enlargement and without any order of the Court in that behalf. Under these circumstances the learned Judges held that the suit must be treated as barred by limitation, whether this view can be reconciled with the opinion expressed in some of the other cases especially in the judgment of the Full Bench in Padmanand Singh v. Anant Lal Misser 34 C. 20 it is not necessary for me to consider on the present occasion. In my opinion it does not touch the question which am called upon to decide. I may also point out that Section 149 of the New Code has cleared up any difficulty which might arise under the earlier decisions. Section 149 provides as follows: 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-fees 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 payable, shall have the same force and effect as if such fee had been paid in the first instance.' Here again, therefore, we have a legislative approval of the rule laid down by their Lordships of the Judicial Committee in Stuart Skinner v. William Orde L.R. 6 I.A. 126 : 2 A. 241 at p. 250. I must consequently hold that it was competent to the Court to enlarge the time, as it did, and, that upon payment of the Court-fees as directed by the Court, the suit was rightly treated as a valid suit, instituted on the 10th April 1903, and unaffected by the bar of limitation.

7. The result, therefore, is that this appeal must be allowed, the judgment and decree of the Sabordinate Judge set aside and the case remitted to him in order that he may decide any other questions which may arise in the appeal.

8. The appellant is entitled to his costs of this Court.

9. Under Section 13 of the Court Fees Act the plaintiff-appellant will get a refund of the Court-fees paid upon the memorandum of appeal to this Court.


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