Mast Ram (deceased) by his L.Rs. vs Paras Ram

Ashok Bhan, J.

Plaintiffappellant filed the suit out of which the present appeal has arisen for recovery of Rs. 2700/ (Rs. 2000/ as principal amount and Rs. 700/, as interest) against the defendantrespondent along with interest at the rate of 1% per annum.

According to the allegations in plaint, defendant borrowed Rs. 2000/ on 16.9.1971 at village Takarla from the plaintiff and executed a pronote along with its receipt which was duly thumbmarked by the defendant. Defendant failed to pay the amount in spite of repeated demands and hence the present suit was filed.

Defendant contested the suit. He took a preliminary objection that plaintiff was a moneylender and he had not obtained the licence for money landing and, therefore, he was not entitled to the decree prayed for. On merits, defendant denied having executed the pronote or borrowed any amount. It was alleged that defendant was an illiterate man and he executed the pronote for Rs. 1000/ out of which Rs. 950/ were paid to him. The plaintiff was a clever moneylender and he in collusion with the scribe had got entered Rs. 2000/ on the pronote and got thumb impression of the defendant. The pronote is false and forged document. No witness was present at the time of execution of the pronote and receipt. There was no attestation of the pronote and if the same has been attested, the same must have been got done afterwards. The other allegations were also denied.

Replication was filed. The controversy resulted in the framing of the following issues :

(1) Whether the defendant executed the pronote in dispute dated 16.9.1971, in favour of the plaintiff ? OPP.

(2) If issue No. 1 is proved, whether the pronote in dispute is without consideration as alleged ? OPD.

(3) Whether the plaintiff is a moneylender ? If so, to what effect ?

(4) Whether the suit is within time ? OPP.

(5) Whether the defendant is entitled to instalments ? OPD.

(6) Whether the defendant is a debtor as defined in Act No. 24 of 1975 ? If so, to what effect ? OPD.

(7) Relief.

The trial Court found all the issues in favour of the plaintiff and decreed the suit in its entirety. Defendant preferred an appeal before the District Judge, Hoshiarpur. Before the District Judge, only issue No. 4 regarding limitation was assailed by the counsel for the defendant. Appellate Court reversed the finding of the trial Court on issue No. 4 and dismissed the suit filed by the plaintiffappellant and hence the present appeal by the plaintiff.

The pronote is shown to have been executed on 16.9.1971. The present suit was filed on 16.9.1974 on an insufficiently stamped plaint along with an application for extension of time for making the deficiency in courtfee good at a later stage on the ground that courtfee was not available on the day of filing of the suit and limitation for filing the suit was expiring on that day. The deficiency in courtfee was made good on 8.10.1974 and the trial Court had proceeded with the suit as if the suit had been filed within limitation. Appellate Court took the view that they by virtue of Order 7 Rule 11 of the Code of Civil Procedure (hereinafter referred to as the Code), the plaint was liable to be rejected where the relief claimed was insufficiently stamped. Appellate Court further held that plaintiff had not sought the permission of the Court to make good the deficiency in courtfee and no order was made by the Court to make good the deficiency in courtfee and, therefore, the plaint was liable to be rejected. Learned counsel for the appellant has argued that sufficient courtfee was not available on the day of filing of the suit and since the limitation for filing the suit was expiring, the suit was filed on insufficiently stamped plaint along with an application for extension of time for making good the deficiency in filing of the courtfee. Under Order 7 rule 10 of the Code, the trial Court was bound to grant an opportunity to the plaintiff to make good the deficiency in courtfee within a period to be fixed by the Court. No such opportunity was given to the plaintiffappellant because he had filed the suit along with an application for extending the period for making good the deficiency in courtfee. No objection has been taken by the defendant in the written statement regarding limitation. He further argued that plaintiffappellant acted bona fide and under the circumstances, lower appellate Court should have exercised its discretion in favour of the appellant in making good the deficiency in courtfee even by extending the period under Sections 148 and 149 of the Code.

I have beard the learned counsel for the parties at length and I am in agreement with the contention raised by the learned counsel for the appellant. It seems that the factum of filing of an application for extending the period in making good the deficiency in court fee along with the plaint had not been brought to the notice of the lower appellate Court. Under Order 7 rule 11 of the Code, the trial Court was bound to grant an opportunity to the plaintiff to make good the deficiency in courtfee before rejecting the plaint. In the present case, plaintiff himself made an application for extending the period for making good the deficiency in courtfee. Under Section 149 of the Code, 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 form and effect as if such fee had been paid in the first instance. Since the trial Court did not reject the plaint under Order 7 rule 11 of the Code and proceeded with the suit as if the same had been filed within limitation on affixation of the requisite courtfee, it would be deemed as if the Court had condoned the delay in affixing the court fee. Lower appellate Court was not right in holding that the suit filed by plaintiffappellant was barred by limitation. The finding of the lower appellate Court on issue No. 4 is, therefore, reversed and that of the trial Court affirmed.

Faced with this situation, learned counsel for the defendant respondent argued that findings on the issues No. 1 and 2 deserve to be reversed. Lower appellate Court has not recorded its finding on any other issue except issue No. 4. I have gone through the finding recorded by the trial court on other issues as well as with the help of learned counsel for the parties.

Execution of the pronote Ex. P/1 and receipt Ex. P/2 stand proved by the evidence of P. W.1 Basant Ram Scribe, P.W. 2 Hans Raj attesting witness and P.W. 3 Mast Ram plaintiff himself. They have stated that defendant had executed the disputed document in favour of the plaintiff and had thumbmarked the same after understanding the contents thereof. Pronote and receipt were executed after taking the cash consideration of Rs. 2000/. 1 find no infirmity in their testimony as they had no illwill or enmity with the defendant. Defendant himself has admitted the execution of the pronote and receipt but the only point disputed by him is that in fact he had not taken Rs. 2000/ and had taken only Rs. 1000/. No reliance can be placed on his testimony which runs counter to the testimony of scribe, attesting witness, plaintiff and the pronote Ex. P/1 itself. It is, therefore, held that pronote Ex. P/1 and receipt Ex. P/2 were executed by the defendant after taking the cash consideration of Rs. 2000/ and after understanding the contents thereof.

No other point was urged before me.

For the reasons recorded above, the appeal is accepted, judgment of the lower appellate Court is set aside and that of the trial Court is restored in its entirety. The parties shall bear their own costs.