Venkataramayya and Others vs Krishnayya

Shephard, J.—The question is whether the plaint, having been presented with an insufficient Court-fee stamp on the last day allowed by the

law of limitation, viz., the 29th March 1893, and subsequently within the time fixed by the Court presented again with a proper stamp, can be said

to have been duly presented within the time limited by the Act of Limitation. According to the 4th

[Section 4: Subject to the provisions contained in sections five to twenty-five (inclusive)

Dismissal of suits &c., every suit instituted, appeal presented, and application made

instituted &c., after period after the period of limitation prescribed therefore by the second

of limitation. schedule hereto annexed shall be dismissed, although limitation

has not been set up as a defence.

Explanation.--A suit is instituted in ordinary cases when the plaint is presented to the proper officer; in the case of a pauper, when his application

for leave to sue as a pauper is filed; and in the case of a claim against a company which is being wound up by the Court when the claimant first

sends in his claim to the official liquidator.]

section of that Act, a suit is instituted when the plaint is presented to the proper officer, and unless the suit is so instituted within the period

prescribed by the schedule, it must be dismissed. This suit, therefore, ought to have been dismissed, if, in point of law, there was no plaint

presented on the 29th March 1893. The document presented as a plaint satisfied the requirements of the Civil Procedure Code, but it did not

satisfy the requirements of the Court Fees Act, inasmuch as the stamp affixed was 12 annas when it ought to have been Rs. 15-12-0. That being

the case, it was a document which, in view of the provisions of Section 6 of the Court Fees Act, could not law fully have been filed by the Court to

which it was presented. Moreover, it was a document which, according to the 28th [Section 28: No document which ought to bear a stamp under

this Act shall be of any validity, unless and until it is properly stamped. Stamping documents in But if any such document is through mistake or

advertently received. inadvertence received, filed or used many Court or office without being properly stamped, the presiding judge or the head of

the office, as the case may be, or, in the case of a High Court, any Judge of such Court may, if he thinks fit, order that such document be stamped

as he may direct; and on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it bad

been properly stamped in the first instance.] section of the same Act, possessed no validity. The Act not only imposes a restriction or disability on

the Court with reference to an inadequately stamped document, it also, by declaring the invalidity of such document, makes the proper stamping of

a document purporting to be a plaint an essential condition of the existence of a valid plaint. In other words, a plaint inadequately stamped is, in

point of law, no plaint at all. I can find nothing in Section 54 of the CPC to conflict with this view of the law. We are not concerned with the case

of improper valuation, the case contemplated in Clause (a) of Section 54 of the CPC and Sections 9 and 10 of the Court Fees Act. Nor are we

concerned with the case of mistake or inadvertence on the part of the Court case to which the proviso to Section 28 of the latter Act is applicable.

The case before us is the one provided for in Clause (b) of Section 54 of the Civil Procedure Code. The object of that clause is to give the party

who has presented a defectively stamped plaint an opportunity of supplying the defect. Instead of rejecting the plaint the Court must fix a time for

the supply of the requisite stamp paper. But for this saving provision, a fresh plaint would have been indispensable, as it is, if the requisite stamp

paper is not supplied within the time fixed. It appears to me that this provision of the law is in no manner inconsistent with the construction which

place upon the Court Fees Act. Because the law makes that provision in favour of the party whose plaint is defective in the matter of stamp, I

cannot see why it should be said that the law empowers the Court to enlarge the period allowed by the Limitation Act, or gives retrospective

validity to a document which, at the time when it was first presented, was invalid. Seeing that the Legislature had before them the proviso to the

28th Section of the Court Fees Act, which declares in favour of retrospective validity in the case therein provided for, it is not to be supposed that,

in framing Section 54 of the Code, they intended that principle to be extended to cases not within the proviso. A still stronger argument of a similar

character is furnished by Section 582-A of the Civil Procedure Code. That Section which became law on the 29th July 1892 refers, like the

second paragraph of Section 5 of the Limitation Act, to appeals and applications for review of judgment. The Section provides for the case of an

insufficiency of stamp ""caused by a mistake on the part of the appellant as to the amount of the requisite stamp."" It declares that, notwithstanding

the insufficiency, the memorandum of appeal ""shall have the same effect and be as valid as if it had been properly stamped,"" This Section probably

owes its origin to the decision of the Full Bench in Bulkaran Rai v. Gobind Nath Tiwari ILR AIL 129 . It was there held that the practice of giving

an appellant time to supply a deficiency of Court-fee stamp and treating the memorandum of appeal as validly presented on the day when it was

presented with the defective stamp was erroneous. This practice was one which generally prevailed in this and other Courts, and the effect of the

new Section was to legalize it, subject, however, to the condition that the deficiency of stamp was due to mistake on the appellant''s part. In the

absence of any such mistake it is clear now that in the case of appeals the decision of the Allahabad Court must prevail. The appeal must be

rejected unless the memorandum adequately stamped is presented within due time. Since the Legislature has, by this new Section, extended a

limited indulgence to appellants, it cannot be supposed that it was intended to give plaintiffs, in respect of their plaints, the same indulgence in

unqualified terms. To hold in favour of the plaintiff in the present case would mean that, whereas an appellant can take advantage of Section 582-A

only on proving mistake, a plaintiff may deliberately and with his eyes open affix an inadequate Court-fee stamp and, on the balance being

furnished within a time fixed, demand to have his plaint treated as if at institution it had been properly stamped. This cannot possibly have been the

intention of the Legislature, for the Section already mentioned and the latter part of Section 5 of the Limitation Act shows that appellants, not

plaintiffs, are regarded as parties in whose favour the rigour of the law of limitation should be relaxed.

The case of Skinner v. Orde ILR All. 241 is relied upon in this as in other cases as containing a dictum of the Judicial Committee in favour of the

view advocated by the respondent''s Vakil. Skinner v. Orde ILR All. 241 is however easily distinguishable from the present ease. There the

petition as originally presented by the plaintiff was complete and valid and only required the order of the Court u/s 308 of the Code then in force to

make it fully efficacious as a plaint. After the filing of the petition the plaintiff acquired the means requisite for paying the Court fee, and accordingly

the proper stamp was affixed. The question was whether the plaintiff was, as regards the date of the presenting of his plaint, to be placed on the

footing on which he could have been, had the order above mentioned been made, or whether the plaint should have been rejected altogether.

There was no question, in that case, of validating a plaint which was, in its inception, invalid. In the present case, on the contrary, that is precisely

the contention which must be raised, and it clearly is not admissible, because a transaction ab initio void cannot he validated.

I have already given reasons for holding that the plaint as presented was of no legal force or effect whatever. I agree with the decision in Jainti

Prasad v. Bachu Singh ILR 15 All. 65. I reverse the decree of the District Judge and restore that of the District Munsif with costs.

Davies, J.

I entirely concur.