Deonath Sahai vs Radha Kant Prasad

Coutts, J.—This appeal arises but of the suit brought for recovery of certain money due on a hand-note. The suit was dismissed by the Munsif on the ground that the hand-note was not genuine or for consideration and that the suit is barred by (limitation. Against this decree there was an appeal to the District Judge who, without considering the question of the genuineness of the hand-note, dismissed the appeal on the ground of limitation alone.

The question of limitation arises in the following way. Plaintiff filed his plaint on the 18th February 1918, on a Court-fee of ten rupees only. It was found that there was a deficit Court-fee of Rs, 47-12, and the Munsif directed that this should be paid within a week. It was paid within a week and the suit was then registered and heard. Both the Courts below have found that the plaint had been deliberately filed on an insufficient Court-fee, and that, when the deficit Court-fee was paid, the suit was barred by limitation, and, on the authority of Ram Sahay Ram Pandey v. Kumar Lakshmi Narain Singh 42 Ind. Cas. 675 : 3 P.L.J. 74 : 5 P.L.W. 18 they found that the suit was barred by limitation. There appears to be some misapprehension in the mind of both the Courts below in regard to this matter. The case of Ram Sahay Ram Pandey v. Kumar Lakshmi Narain Singh 42 Ind. Cas. 675 : 3 P.L.J. 74 : 5 P.L.W. 18 was a case referring to a deficit Court-fee on a memorandum of appeal, and with regard to this the law is settled, so far as this Court at all events is concerned, that in such a case as the present the memorandum of appeal would be barred by limitation. But it is not so in the case of a plaint. As was remarked by Chamier, C.J., in that case:

It has been held that in the case of a plaint insufficiently stamped the Court is bound, under order VII, Rule to give the plaintiff time to make good the deficiency. I doubt whether the Legislature intended that time should be given as a matter of course, even where the plaintiff has deliberately and without any excuse paid an insufficient Court-fee, but it is too late to question the rulings on this point.

The Munsif, therefore, had discretion in this matter, and time having been granted the suit was within time under Order VII, Rule ii. In these circumstances, the decree of the lower Appellate Court must be set aside and the appeal remanded for rehearing on the other points involved. Costs will abide the result.

Macpherson, J.

I agree.