Bishnath Prasad vs Jagarnath Prasad and Others

Sir John Edge, Kt., C.J. and Straight, J.—This is an appeal from a judgment of the Additional Judge of Ghazipur, dated the 3rd January, 1890, by which he dismissed the plaintiff''s appeal to his Court on the ground that it was not presented within the limitation period. The following are the dates material for consideration. The plaintiff-appellant brought a suit in the Court of the Subordinate Judge of Ghazipur which was dismissed on the 3rd May 1889. The plaintiff-appellant then presented a petition under s. 592 of the CPC for leave to appeal as a pauper, and that petition was accompanied by a memorandum of appeal as required by law. The Judge, acting in the matter as required by the second paragraph of s. 592, perused the judgment and decree of the first Court, and, being of opinion that they were not open to objection as being "contrary to law or some usage having the force of law" or as being "otherwise erroneous or unjust," on the 27th May 1889, rejected the petition. The plaintiff-appellant still had time up to the 13th June, within which to file an appeal on a properly stamped memorandum, but he did not do so; on the contrary he applied to the Judge for review of his order of refusal on the 31st May, and on the 13th June that application was also refused. On the 22nd June 1889, the plaintiff-appellant then came to this Court with an application for revision of the Judge''s order under s. 622 of the Code of Civil Procedure, and that application was refused by this Court on the 16th August 1889. The plaintiff-appellant then went back to the Court of the Judge of Ghazipur, and, on the 25th August, asked permission, while abandoning a portion of his claim, to be allowed to confine his appeal to so much of the property as would be represented by payment of the court-fee of 10 rupees. On the 17th September this prayer of the plaintiff was granted and on the 19th September the memorandum of appeal was filed and registered. It was in reference to these facts that when the appeal came to a hearing on the 3rd January 1890, the Judge who had to deal with it came to the conclusion that it was not presented within the period of time allowed by law, and it could not fee regarded as an appeal until the 19th September 1889, when it was filed and registered. The contention which has been raised before us by Mr. Gobind Prasad on behalf of the plaintiff-appellant is that although the petition of appeal in fom� pauperis, dated the 22nd May 1889, was rejected on the 27th May, nevertheless there was already on the file of the Judge''s Court a memorandum of appeal in respect of which that Court was competent to make orders granting time for supplying the deficiency in stamp, and that when the deficiency in stamp pro tanto was made good on the 28th August 1889, by the payment of 10 rupees, that payment acted retrospectively so as to make the memorandum of appeal a good memorandum of appeal from the very date on which it was presented along with the application in form� pauperis. The learned pleader has laid much stress on the case of Stuart Skinner v. William Orde ILR 2, All, 241. That case has reference to Act VIII of 1859, as ss. 308 and 310, though I am not aware that in the present CPC the provisions relating to pauper suits are materially different to those of the former Act, and, if we were dealing on the present Code with the same facts as appear in that case, we should probably have to hold ourselves governed by the ruling of their Lordships of the Privy Council. The case before us, however, is distinguishable. In the first place we have to deal with a memorandum of appeal, and in the next place we have to deal with a memorandum of appeal which accompanied an application to appeal in form� pauperis which was refused. I am of opinion that when the petition to appeal in form� pauperis was disallowed on the 27th May, the whole of that proceeding came to an end and that along with it fell the so-called memorandum of appeal which accompanied it. I do not think that a piece of un-stamped paper which only accompanied a petition to appeal in form� pauperis could be called a memorandum of appeal. It was never a memorandum of appeal in the proper sense of the term which the Judge of the appellate Court could take cognizance of or make any order upon. Consequently, whatever directions were given by the Judge, either in his order of rejection of the 27th May, or of his refusal to review his judgment on the 13th June, were ultra vires. Mr. Gobind Prasad has urged that the provisions of s. 54 of the Code are applicable in the Courts of first appeal below. Conceding that it is so for sake of argument, he has not satisfied me that the words "insufficient stamp" in paragraph 2 of s. 54 refer to or include a wholly unstamped paper. If this view were correct a litigant on the last day of limitation with what purported to be a plaint or memorandum of appeal written on a plain paper might come to a Court and insist on the Court receiving it for the purpose of making an order under s. 54, and thereby obtain an extension of the period of limitation. I think whenever insufficient stamps are used the Court may consider the memorandum of appeal under s. 54; but in this case the paper had no stamp, therefore it was not a memorandum of appeal and never became a memorandum of appeal until, at the earliest, the 26th August 1889, when Rs. 10 was paid into Court, though probably, strictly speaking, not till the 19th September, when it was filed and registered. Consequently, as there was no memorandum of appeal, we hold that the orders of the Judge of the 27th May and 13th June, were of no effect and that the filing and registration of the 19th September was long beyond the period of limitation. The appeal is dismissed with costs.