Chaturbhuj vs Tharpal

Chaturvedi, J.—This is defendants'' miscellanies appeal under O. 43 R. 1 against an order of remand passed by the District Court under R. 1 of O. 43 Civil Procedure Code.

The facts are that Tharpal plaintiff-respondent filed a suit in the Court of Civil Judge, Jaora, on 16-7-1951 against Chaturbhuj and his brother defendants, for recovery of Rs. 1028-11-0, The office reported that the court-fee paid was not adequate and the Court passed an order on 28-7-1951 for making up the deficiency in Court-fees within eight days. At the same time the Court ordered that notice should go to the defendants for filing written-statements. The plaintiff did not deposit court-fees on 5-8-1951 i.e. within 8 days. There was no application for extension nor any clear order about it; but from the marginal note of the order-sheet it appears that the plaintiff deposited court-fee stamps on 22-8-1951, that is, there was delay of 17 days in making up the deficiency in court-fees. Then the case had to be adjourned again and again till on 26-10-1951 the defendants applied for delivery of interrogatories to the plaintiff. This application was rejected and the defendant was asked to file written statement. On 8-5-1952 the defendants filed written statement in which they took the general plea that the suit barred by limitation The case then continued to be dragged on from 8-5-1952 to 11-12-1952 when issues were framed. Issue No. 9 related to limitation. It was for the first time on 16-1-1953 that the defendants raised an objection to the making up of deficiency in court-fees by the plaintiff after the expiry of the period fixed by the Court, before this date the point was never raised. The learned Civil Judge dismissed the suit on the point of limitation stating that the Court''s orders were to make up the deficiency by 5-8-1951 but the deficiency was not made good till 22-8-1951 on which date it should be assumed that the suit was instituted and was beyond limitation. The first appellate Court did not agree with the trial Court on this point and took the suit to be within limitation and remanded the case to the trial Court for disposal according to law. The defendants now came in appeal against this remand order.

Mr. Sanghi urges that the Court never exercised discretion in this case in the real sense of the term. The Court was not even apprised of the fact that the court-fee had been paid late; that there was neither an express order of the Court nor such a conduct from which it can be inferred that the Court paid attention to the problem before it and wanted to extend the date and condone the delay.

The real question for determination in this appeal is; whether the Court within the meaning of S. 149 CPC allowed the plaintiff to pay the court-fee on 22-8-1951, that is 17 days after the period originally fixed for payment.

There are three cases which are relevant and important in this respect. The first is Pawan Kumar Chand vs. Dulari Kuar (58 I.C. 216 ). In this case the plaint was actually filed on 27th May 1916. On that day it was found that there were deficit court-fees due from the plaintiff and the Subordinate Judge made an order to the effect that the plaintiff do pay the deficit Court fee stamp and supply Survey Thana and Khewat within a week from that day. The deficit court-fee was not made good within a week. Then there was another order giving the plaintiff three days'' time to pay it. But even then the court-fee was not paid. It was, however, subsequently made good on 17th June. There was no order extending the time from 9th June to 17th June, It was held by a Division Bench of the Patna High Court that in such matters the Court must assume that there was extension of time from 9th June to 17th June. It appears that this case has been followed in Raghunandan Sahay and Others Vs. Ram Sunder Prasad, (Raghunandan Sahay vs. Ram Sunder Prasad) where the facts were similar. Dawson Miller C.J. in delivering the opinion of the Division Bench observed:--

I think a strong presumption arises that if the Court did not intend to extend the time further it would have rejected the plaint as it was bound to do under O. 7 R. 11, unless the time was extended. The only reasonable inference, until the contrary is shown, 3 that the Court intended to act according to law and that in accepting the deficiency and registering the plaint it did in fact, in its discretion, extend the time.

The leading case on the point is still the Full Bench decision in 34 Cal 20 (Padmanund Singh vs. Ananat Lal Misser) where the facts were that a plaint was filed with insufficient court-fees. The Court directed the plaintiff to put in the deficit court-fees within a time fixed by it. He failed to do so, but put in the Court-fees on a subsequent day, and the plaint was admitted and duly registered. At the time of hearing of the suit, on the objection of the defendant the plaint was rejected. It was held by the Full Bench (Rampini J. dissenting) that in the circumstances of the case the plaint might well be regarded as presented and filed on the date it was registered with all the consequences that would follow in regard to limitation or otherwise from its being filed on that date. The following observations by-Maclean C.J. at pages 24-25 are, however, important:--

As a general rule I should hold that when once the Court has admitted and registered a plaint it cannot subsequently reject it. In the present case by the course it adopted, the Court must be taken to have extended the time for paying in the Court-fees up to the 9th July, when they were actually paid in and accepted and to have treated this as the time fixed for payment of the deficit. The Court cannot go behind this. To allow it to do so might lead to the gravest injustice. Take the case of a suit for large property; an insufficient Court-fee originally paid; time given for payment of the deficit the deficit not so paid in, but paid in two or three days afterwards, accepted by the Court and the plaint admitted and registered. At the last moment after the incurring possibly of great expense in the conduct of the case, the plaint is rejected on the ground of the deficit not having been paid within the time fixed. If the Court had rejected the plaint in the first instance on the ground that the deficit was tendered too late, the plaintiff could then have brought a fresh action, whilst, very possibly, by the objection being taken at so late a stage, such new suit would be barred by limitation. This would be a grave injustice attributable to the action of the Court itself, which lulled the plaintiff into a sense of false security by admitting and registering his plaint.

These observations, weighty as they are, are entitled to my respectful concurrence and fully apply to the facts of the present case. The proceedings in the present case continued from 28-7-1951 to 16-1-1953. The plaint was registered, written statement was filed by the defendants under orders of the Court, and issues were framed. From 28-7-1951 to 16-1-1953 no objection was raised to the payment of the Court fees by the plaintiff after the expiry of the period fixed by the Court. The proceedings dragged on till 31-1-1953 when the trial judge rejected the plaint on the ground that the deficiency in the Court fees was not made good within the period fixed by his predecessor. If the Court had rejected the plaint on 22nd August, 1951 on the ground that the deficit was tendered too late, there would have been no grievance; but to reject it after 18 months, certainly, amount to grave injustice attributable to the action of the Judge himself who could not have known the mind of his predecessor in whose time the deficiency was made good and the plaint was registered and defendants were asked to file written statements. In the circumstances of the case, the only reasonable inference which can be drawn is this that in accepting the deficiency and registering the plaint and the time allowing the defendants to file written statements and in framing issues it did in fact, in its discretion, extend the time. S. 149 C.P.C. now gives wide and unfettered discretion to the Court to accept the Court-fees at any stage and if the Court has received the Court-fees after the expiry of that period, the instrument will be validated retrospectively as from the dale of its presentation. (Faizullah Khan vs. Mauladad Khan. A 33 C.W.N. 781 P.C. and Mata Baksh Singh vs. Ajodhiya Baksh Singh AIR 1936 Oudh 340).

In rejecting the plaint, the trial Judge, by the way mentioned that if the plaint was not rejected it would amount to taking away the valuable right of the defendants so far as bar of limitation is concerned. A similar argument was repelled by the Supreme Court in Mahasay Ganesh Prasad Ray and Another Vs. Narendra Nath Sen and Others, (Ganesh Prashad vs. Narendra Nath) where it was held that the question of payment of court-fees is primarily a matter between the Government and the person concerned and therefore where the Court in exercise of its discretion allows the appellant to amend his memo of appeal and grants time for payment of deficient court-fees under S. 149 C.P.C., the other party cannot attack the order on the ground that it takes away his valuable right to plead the bar of limitation. Observations made in that case, to a certain extent, apply to the present case also.

In the view that I take the first appellate Court''s order of remand is fully justified, I would, therefore, dismiss the appeal with costs.