Bahuria Ramsawari Kuer and Another vs Dulhin Motiraj Kuer and Others

This is an appeal against an order of the District Judge of Saran, rejecting a memorandum of appeal on the ground that it was insufficiently stamped. The learned advocate for the plaintiffs respondents has raised a preliminary objection that no appeal lies against such an order, citing in support Jnanadasundari Shaha Vs. Madhabchandra Mala, . That however was a case in which the point actually decided was that though the District Judge had rejected a memorandum of appeal on the failure of the appellant to put in deficit court-fees by the time allowed, he had jurisdiction to entertain a fresh application for time under Order 7, Rule 13, applying Section 5, Limitation Act. In the case before us the District Judge rejected the memorandum of appeal as soon as the deficiency in court, fees was brought to his notice. In Suraj Pal Pandey v. Uttam Pandey AIR (1922) Pat. 281, following the Allahabad and Madras rulings in Rup Singh v. Mukhraj Singh (1885) 7 All. 887 and Ayyanna v. Nagabhoosanam (1893) 16 Mad. 285, moreover it was held in this Court that an order of dismissal by a District Judge construed as an order rejecting a memorandum of appeal for the appellants'' failure to make up a deficit in court-fees is tantamount to a decree within the meaning of the Civil Procedure Code. An order of rejection passed without giving the appellant any time at all to make up the deficit would seem even more clearly to be a decree, for to such an order it is impossible to apply Order 7, Rule 13, the provision on which the decision in T.K. Rowlins v. Lachmi Narain Jha A.I.R (1918) Pat. 210, was rested. The learned Calcutta Judges did indeed make it clear that in their opinion the definition of "decree" in Section 2, as inclusive of the rejection of a plaint is not extended by Section 107(2), to the rejection of a memorandum of appeal. But the cases from Rup Singh v. Mukhraj Singh (1885) 7 All. 887, and Ayyanna v. Nagabhoosanam (1893) 16 Mad. 285 were decided under the Code of 1882 which provided that an order rejecting a plaint "is within the definition" of "decree" and this provision is substantially reproduced in the present Code, even though the clause defining decree" was materially modified in other respects in 1908.

It may at first sight seem rather strange that the rejection of a plaint should u/s 2, be deemed to include the rejection of a plaint and yet under Order 7, Rule 13, should not of its own force, preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action; but this is probably to be got over by a reference to the usual words in the defining Section (Section 2), "unless there is anything repugnant in the subject or context." Be that as it may, the rejection of the memorandum of appeal in the present case was not rejection in any of the circumstances specified in any clause of Rule 11 of Order 7, as happened in Jnanadasundari Shaha Vs. Madhabchandra Mala, , and Rule 13 only refers to rejection on the grounds given in Rule 11. If it had been the intention of the Legislature to make the rejection of a memorandum of appeal, in circumstances to which Order 7, Rule 13 does not apply, non-appealable, the rulings under the Code of 1882 would, it may be presumed, have led to a material change as regards the rejection of a plaint in the definition of decree or to a clear provision to that effect somewhere else in the Code of 1908. From this point of view, it is impossible to hold that the rejection of the memorandum of appeal in the present case is not a decree (and is therefore not appealable as such) merely because Section 107(2) of the Code, as Suhrawardy J. pointed out,

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.

The preliminary objection must therefore be overruled. The learned Government pleader, who appears for the appellants, began by endeavouring to show that the memorandum of appeal was not in fact insufficiently stamped. This is however opposed to an express decision of the taxing Judge in T.K. Rowlins v. Lachmi Narain Jha AIR (1918) Pat. 210 . The learned advocate referred to our recent Full Bench decision in Thakan Chaudhuri Vs. Lachmi Narain, where several previous decisions relating to court-fees payable by a mortgagee decree-holder when he appeals or proceeds to execution were approved. But in the present case it was the defendants (the mortgagor and her transferees) that appealed to the lower Appellate Court. It has been pointed out in several cases that the relief that defendants in such suits have to seek from the Appellate Court is different from what a plaintiff appellant would have to seek. On this being realized, the point was not pressed, and it must be held that the appeal to the District Judge was not in fact sufficiently stamped.

It was next contended that the learned District Judge should not have summarily rejected the memorandum of appeal on noticing the deficiency, but ought to have given the appellants some time for filing the necessary stamps. Order 7, Rule 11, which deals with the powers of original Courts in such matters has been recently considered by a Pull Bench of this Court in Baijnath Prasad Singh v. Umeshwar Singh A.I.R (1937) Pat. 550 and it has been held that it is the duty of the Court in cases coming under Clause (c) of Rule 11 of Order 7 to require the plaintiff to supply the requisite stamp paper within a time to be fixed by the Court before rejecting the plaint. It has been pointed out on behalf of the respondents that there has been some difference of opinion on the question whether Order 7, Rule 11, applies to Courts of appeal. The Bombay High Court in Achut Ramchandra Pai Vs. Nagappa Bab Balgya, held that Section 107(2), Civil P.C., does make Order 7, Rule 11 applicable to appeals. This view was not accepted in Madras in A. Narayana Rao v. A. Seshamma AIR (1915) Mad. 426, but the learned Judges in this case proceeded on what had been held in Balkaran v. Govind (1890) 12 All. 129 , regarding High Courts to which Order 7, Rule 11(c), is made applicable by Order 49, Rule 3. In Jnanadasundari Shaha Vs. Madhabchandra Mala, it seems to have been held that Order 7, Rule 11, is applicable to the Court of the District Judge as a Court of Appeal; and the same view is applied in Suraj Pal Pandey v. Uttam Pandey A.I.R (1922) Pat. 281, which has been already referred to. In Allahabad and Calcutta the view also taken seems to be that if an insufficiently stamped memorandum of appeal has in fact been accepted by the Court by inadvertence, time may be given to the appellant to supply the deficiency. Now, this is what happened in the present case, for the memorandum of appeal was presented on 17th November 1936 (the first open day after the Civil Court vacation) and was ordered by the District Judge on that date to be registered; it was rejected on the following day on a stamp report pointing out the deficiency in court-fees. The learned advocate for the respondents has relied on the observation in Ram Sahay v. Lachmi Narain A.I.R (1917) Pat. 26, that Section 149 should not be construed and time extended in such a way as to nullify Section 6 of the Court-fees Act. But it was also said in that case that:

When the amount of the court-fee payable Is open to doubt, or the amount of the fee cannot be ascertained by the Court till the record is received, or it appears that the appellant has made an honest attempt to comply with the law, the Court may properly receive the appeal and allow time for; the deficiency, if any, to be made good.

The appellants (as already indicated) were the defendants in the mortgage suit, and they valued their appeal at the figure at which the plaintiffs had valued it in the trial Court. According to the ruling in Rowline''s case AIR (1918) Pat. 210 they ought to have valued it a little higher by including the interest pendente lite, a relatively small matter. There was also a number of rulings which would at first sight suggest that the appellant need not pay court-fees on such interest. It is plain that the learned Judge''s who decided Ram Sahay v. Lachmi Narain A.I.R (1917) Pat. 26 would have had no hesitation, on the principles laid'' down by them, in giving such an appellant the benefit of Section 149 or Order 7, Rule 11. The argument for the appellants becomes all the more irresistible when we see that the stamp report about the deficiency was evidently dealt with by the District Judge without the knowledge of the appellants. The learned advocate for the respondents has endeavoured to argue that no consideration ought to be shown to the appellants, because after the rejection of their memorandum of appeal, they applied to the District Judge u/s 151, Civil P.C., and when it was pointed out to them that their proper remedy was by an application under Order 41, Rule 1, which required the payment of court-fees equal to half the court-fees payable on the appeal, they took no further action.

What this however has to do with the propriety of the order of rejection passed by the District Judge on 18th November 1936 it is not very easy to see. The appeal must, in our opinion, be allowed, and the order of rejection passed by the lower Appellate Court set aside, the case being sent back to the lower Appellate Court for disposal in accordance with the law.