Ram Murti and Others vs Bank of Patiala

Teja Singh, C.J.—An appeal was preferred to this Court on 10-7-2005 (25-10-1948) from the order of the District Judge, Patiala, dated 4-4-2005 (19-7-1948) whereby he had rejected the plaint because proper court-fees had not been paid. On 3-3-1949 when the case came before a Bench an objection was taken that the memorandum of appeal did not bear proper court-fees. This objection was accepted by the Bench and the appeal was dismissed. The Appellants have now made a petition in which two prayers are made: (i) that we should review our previous order dismissing the appeal, and (ii) that the Appellants be given a certificate for further appeal to the Judicial Committee. It may here be mentioned that at the time the appeal was decided there was a Judicial Committee of the Ijlas-i-Khas to which appeals from the decrees of the High Court could be preferred by-special leave.

To start with it was urged before us that since a prayer was made on behalf of the Appellants, before the appeal was dismissed, that opportunity should be allowed to make up the deficiency in court-fees, the Bench wrongly refused to consider that request. This aspect of the matter was discussed by me and Kartar Singh J. who then constituted the Bench with me in our order dated 6-7-1949. We showed therein that the contention that any request had been made to us for permission to put in deficient court-fees before we pronounced the order dismissing the appeal was wrong and that the affidavit of Lala Kishori Lal Advocate was incorrect. The following observations made by us in that order regarding what actually happened may be reproduced here:

What happened was that when the appeal came up before us I raised the question of court-fees. The Appellant''s counsel apparently was not prepared on the point but all the same he argued the matter. Not being satisfied with his arguments we ourselves sent for the relevant authorities and after we had heard the counsel and after we were satisfied that proper court-fees had not been paid on the memorandum of appeal, I started dictating the judgment in open Court. Lala Kishori Lal never urged then that he had something more to say, nor did he pray that time be granted to him to look up law.

The entire judgment was dictated by me in open Court in the presence of the parties'' counsel and after I had dictated the sentence "That the result in our opinion is that the appeal is not properly stamped and must be dismissed," it was suggested to me by my learned colleague that a note might also be made that the Appellant''s counsel did not even request that time should be given to him to make up the deficiency and on this the following sentence, which is the concluding sentence of my order, was added:

It may here be pointed out that the Appellants'' counsel did not even request that time should be given to him to make up the deficiency in court-fees.

It was urged before us that the Appellants'' counsel were all along under the impression that opportunity would be allowed to them to address further arguments on the question of court-fees. This question was also dealt with in my order dated 6-7-1949. All that need be mentioned here is that since I dealt with the whole matter and also discussed the law on the point in my order such an impression on the part of the counsel could not exist but even if it did the counsel must thank themselves for it. As I pointed out in my above mentioned order a request for making up the deficiency in court-fees was made to us by Lala Kishori Lal, but it was after I had dictated the whole order, including the last sentence, which was added at the suggestion of my learned colleague.

Then it was urged before us that the refusal of the Bench to allow time for making up the deficiency in court-fees was against the provisions of law. Learned Counsel referred us to Order 7, Rule 11, Section 149, CPC and Section 28, Court-fees Act and he contended that as it is laid down in Section 107, CPC that an appellate Court has the same powers and must perform the same duties as are conferred and imposed by the Code upon the Court of original jurisdiction, we were bound to allow the Appellant time to make up the deficiency in court-fees and our order dismissing the appeal was erroneous. In the first place, I wish to point out that even if the order of the Bench was vitiated by a mistake on a question of law, this cannot be a ground for setting it aside on review. The grounds on which a review can be allowed are clearly mentioned in Clause (c) of Sub-rule (1) of Order 47, Rule 1, CPC and it is now well-settled that it is not competent for a Court to travel beyond them. These grounds are: (i) the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the party or could not be produced by him at the time the decree was passed or order made; (a) some mistake or error apparent on the face of the record; and (iii) any other sufficient cause. Ground No. (i) has no application whatsoever. As regards No. (ii) even if it be conceded for a moment that we did commit a mistake or error of law, it cannot be said that that mistake was apparent on record, because the Appellants'' counsel had to concede that there was a conflict of opinion on the point whether Order 7, Rule 11, CPC can govern the case of a memorandum of appeal and the Court is, therefore bound to grant the Appellant time to make up the deficiency in court-fees before rejecting the memorandum. Stress was laid by the counsel upon the third ground, i.e. sufficient reason, and he argued that taking into consideration the value of the property involved in the litigation as well as the fact that case of the Appellants was a minor it was a fit case in which we should exercise the power of review. This contention must, however, be rejected in view of the pronouncement of their Lordships of the Privy Council in Chhajju Ram v. Neki AIR 1922 P.C. 112 : 3 Lah. 127 where they held that "any other sufficient cause" means reason sufficient on grounds at least analogous to those specified immediately previously. In that case the Punjab Chief Court had granted a review on the ground that the judgment had proceeded on an incorrect exposition of the law. Their Lord-ships of the Privy Council held that this was not a ground analogous to those mentioned in the earlier part of Clause (c) of Sub-rule (1) of Order 47, Rule 1, and consequently it could not be, a sufficient reason for granting the review. This view was confirmed in AIR 1934 213 (Privy Council) Their Lordships observed that Rule 1, Order 47 must be read as in itself definitive of the limits within which review is permitted and the words "any other sufficient reason" must be taken as meaning "a reason sufficient on grounds at least analogous to those specified immediately previously". The fact if a request for permission to make up the deficiency in court-fees had been made before us before we had disposed of the appeal and the Bench might have taken a lenient view and granted time is altogether immaterial, for the simple reason that when the Bench dismissed the appeal because the memorandum of appeal was not properly stamped, a valuable right accrued to the other side and that right cannot now be interfered with or taken away except in due process of law. It is correct that a remedy by way of review was open to the Appellants and they have availed of it, but the review, as observed above could be allowed only on the grounds mentioned in Order 47, Rule 1, and when no such grounds are shown to exist, we are entirely helpless in the matter.

Secondly I wish also to say a word regarding the applicability of Order 7, Rule 11 to the case of an appeal. The heading of the rule is "Rejection of Plaint" and the word mentioned in the rule is plaint. It is laid down in the rule that the plaint shall be rejected (a) when it does not disclose a cause of action, (b) where the relief claimed is undervalued and the Plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so, (c) where the relief claimed is properly valued bat the plaint is written on paper insufficiently stamped and the plain, tiff on being required by the Court to supply the requisite stamp paper within a time fixed by the Court fails to do so, and (d) where the suit appears from the statement in the plaint to be barred by any law. It is true that Section 107 of the Code authorises the appellate Court to exercise the same powers as are possessed by a Court of original jurisdiction, but this can only mean that if a proper case is made out an appellate Court can grant the Appellant time to make up the deficiency in court-fees and it is not bound to dismiss it for went of proper court-fees. But there is no duty cast upon the appellate Court to grant time in every case. Some High Courts have taken a different view, but I would prefer to follow the view taken by the Lahore High Court in Balwant Singh v. Jagjit Singh AIR 1947 Lah 210 : 227 I.C. 95 , and by a Bench of the Madras High Court in Pamidimukkala Sitharamayya and Others Vs. Ivaturi Ramayya and Another, . The following observations made by Varadachriar J., in the Madras case can be aptly quoted:

It has now been contended before us that in spite of the dismissal of the application u/s 149, Code of Civil Procedure, the memorandum of appeal cannot be held not to have been presented in time because on the analogy of the provisions of Order 7, Rule 11, the Appellants ought to have been called upon within a fixed period to pay the deficient court-fee and until that baa been done it is not open to the Court to reject the appeal. This argument seems to us to ignore the real point for consideration. We may, however, mention in passing that the applicability of the provision in Order 7 Rule 11(c), Code of Civil Procedure, to appeals is by no means so clear as the learned Counsel for the Appellants assumes. On the other hand the weight of authority is decidedly against the applicability. Except the Bombay High Court, nearly all the other High Courts have held that the provision in Order 7, Rule 11, Code of Civil Procedure, does not apply to appeals.

The learned Judge also pointed out the difference between a plaint and a memorandum of appeal and held that there were good grounds why the provision of Order 7, Rule 11, Code of Civil Procedure, should not be made applicable to a memorandum of appeal.

It was stressed before us that since the Bench while dismissing the appeal did not consider the provisions of Order 7, Rule 11 and Section 149, etc., this amounted to a mistake apparent oh the record. I have shown above that the reasons why none of these provisions was considered was that no prayer was made to the Bench for permission to make up the deficiency in court-fees and I do not think that there is any justification for holding that a point upon which a previous order or judgment is silent can be regarded as a mistake, much less a mistake apparent on record. In addition, there being a conflict of opinion on the point, it cannot be held that the refusal of the Bench to allow deficiency in court-fees to be made up was necessarily a mistake. For all these reasons I would hold that there is no ground for review of the order.

As regards the second prayer, all that need be mentioned is that the Judicial Committee of the Ijlas-i-Khas having ceased to exist, no useful purpose can be served by our certifying that the case is a fit one for appeal to the Judicial Committee.

Last of all, counsel urged before us that the case should be certified as a fit one for appeal to the Supreme Court under Article 133 of the Constitution of India, because the property involved in litigation is of the value of Rs. 59,000. It may, however, be pointed out that the appeal was dismissed long before the present constitution came into force and the counsel has not been able to convince us that the right of appeal to the Supreme Court can exist in respect thereof.

In the result I would dismiss the petition with costs.

Gurnam Singh, J.

I agree.