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  • Jwala Prasad, J.
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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The petitioner sought revision of an order of the District Judge of Purnea dated 26 April 1920, which had refused to review an earlier order dated 6 January 1920 that rejected the petitioner's memorandum of appeal.

The background events recorded in the opinion are:

  • A decree signed by the Additional Munsif of Araria on 17 September 1919 gave rise to an appeal presented by the petitioner on 3 November 1919.
  • The petitioner applied for copies of the judgment and decree on 16 September 1919. The court office required the petitioner to file requisite stamps and folios on 18 September 1919. The back of the copy shows the requisite stamps and folios were filed on 27 October 1919.
  • Copies were reported ready on 31 October and delivered to the applicant on 1 November 1919. The 2nd November was a Sunday, and the appeal was therefore filed on 3 November 1919.
  • The court-fee paid with the appeal was eight annas; the proper fee required was Re. 1-8-0 (one rupee eight annas).
  • Along with the appeal the applicant filed an application asking that, under Section 12 of the Limitation Act, the period from 17 September to 1 November be excluded as time occupied in obtaining copies; alternatively, he prayed for an extension under Section 5 of the Limitation Act.
  • On 18 November 1919 the court office reported that (1) the court-fee paid was insufficient, and (2) the appeal appeared barred by limitation unless the applicant's allegation that stamps/folios were filed on 19 September (and not 27 October) were true. The court directed the matter to be put up in presence of the appellant's pleader on 25 November.
  • The court directed the applicant on 1 December to file an affidavit within two days in support; no affidavit was filed. On 6 January 1920 the Court ordered: "Affidavit not filed as directed. The appeal seems to be evidently time barred. The appeal is therefore rejected."
  • On 24 January the applicant applied for review under Order 47 Rule 1 of the CPC. The Court rejected the review application on two grounds: (1) that the appeal was time barred and (2) that the court-fee filed was insufficient.
  • The present application is to revise and set aside the District Judge's order refusing review (dated 26 April 1920).

Legal Issues Presented

  1. Whether the appeal filed on 3 November 1919 was within time having regard to: (a) the period occupied in obtaining copies of the judgment/decree; (b) the Puja holidays and the rule permitting presentation on the court's reopening day; and (c) relevant provisions of the Limitation Act (including Sections 4, 5 and 12 as invoked in the petition).
  2. Whether the deficiency in the court-fee rendered the memorandum of appeal incompetent, in particular whether the deficit fee had been allowed to be paid so as to attract the effect of Section 149 CPC (and the effect of Section 5 of the Court-fees Act).
  3. Whether the petitioner's application to the revisional court was competent — specifically, whether the route of review (Order 47 R.1) and then revision was permissible given the character of the order of 6 January 1920 (rejection/dismissal of the appeal) and legal provisions governing appeals and reviews.

Arguments of the Parties

Applicant's Arguments

  • The applicant contended that he applied for copies on 16 September, filed folios and stamps on 19 September (a day after their notification on 18 September), and that only one folio remained to be filed because of difficulty procuring folios; that one deficit folio was filed on 27 October (the reopening day), and therefore the delay was not due to his laches.
  • He relied on sale-dates shown on the stamps affixed to the copies to support the contention that some stamps/folios were filed on 19 September.
  • He argued that by filing the deficit court-fee on 19 November with an application, the court must be deemed to have accepted it and the deficiency should not debar admission on merits.
  • He sought, alternatively, exclusion of time under Section 12 Limitation Act and an extension under Section 5 Limitation Act.

Respondent's / Other Noted Contentions

  • The opinion records that the respondent raised an objection that the application to this Court might be incompetent (i.e., procedural incompetence to seek revision in the circumstances). The Court addressed and rejected this objection on its merits in the opinion.
  • Implicitly, the court below treated the appeal as time-barred and the court-fee as insufficient; these positions served as the grounds for rejection at the lower stage.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Bibi Fakhrunissa v. Rambhanjan Singh Authority for the proposition that an applicant is entitled to make application for copies on the court's reopening day when limitation would otherwise expire during holidays. The Court cited and followed this authority to hold that the applicant was entitled to apply for copies on 27 October (the reopening day) and thereby keep the earlier application alive for limitation purposes.
Pandharinath Sakha Ram v. Shankar Narayan Joshi (decision of Sir Lawrence Jenkins, C.J.) Interpretation of law and the invariable rule of practice: that an application for copies may be made on reopening day and the limitation period is affected accordingly. The Court expressly followed Sir Lawrence Jenkins's interpretation and practice, holding that the applicant could apply on 27 October and file the deficit court-fee on that date; the decision was relied upon as correct law and binding practice.
Siyadat-un-nissa v. Muhammad Mahmud Judicial affirmation of the same principle noted above (treatment of applications for copies made on reopening day with respect to limitation). The Court noted this decision as confirming the practice and used it in conjunction with the other authorities to justify allowing the applicant the relevant days for limitation computation.

Court's Reasoning and Analysis

The opinion proceeds in a stepwise analysis, applying statutory rules and the cited authorities strictly to the recorded facts:

  1. Filing of stamps and folios: The Court accepted the view of the Court below that the requisite number of stamps and folios were not actually filed until 27 October 1919, because the back of the copy expressly showed that date, and the applicant's explanation for the staggered filing was not accepted by the Court below and no reason was found to differ from that conclusion. The Court observed that it would have been better practice to note all filing dates on the back of the copy.
  2. Limitation computation and holidays: The decree dated 17 September 1919 gave the appellant the ordinary 30 days to prefer an appeal (i.e., until 17 October 1919). That date fell in the midst of the Puja holidays. Relying on precedent and Section 4 of the Limitation Act, the Court held that the appeal could be preferred on the court's reopening day, 27 October 1919. The Court followed decisions (including that of Sir Lawrence Jenkins) to hold the applicant was entitled to apply for copies on 27 October and to file the deficit court-fee on that date; thus the 16 September application was kept alive.
  3. Specific days allowed: The Court concluded the applicant was entitled to an extension of three days "from the date of the application up to the date of notification of the requisite stamps and folios" and a further four days for preparation of the copy (28–31 October). The District Judge below had allowed only the first three days but not the latter four. Granting the full seven days moved the filing due date such that the appeal filed on 3 November was within time (accounting for Sunday on 2 November and Section 4 permissibility).
  4. Court-fee deficiency and competence: Despite concluding the appeal was filed within time, the Court found the appeal to be incompetent because the requisite court-fee was not properly paid. Although the applicant had filed the deficit court-fee (allegedly on 19 November) with an application, there was nothing to show the Court had formally allowed the payment. Section 149 CPC requires explicit permission by the Court to deposit a deficient court-fee for the deposit to be treated as if paid initially. The Court held that a mere filing of the deficit fee and the absence of renewed objection in subsequent orders was not sufficient to meet Section 149's requirements. Consequently, under Section 5 of the Court-fees Act, the appeal was not presented on sufficient court-fee and hence was not a competent appeal and could not be entertained, even if time-wise it had been filed in time.
  5. Competence to seek revision: The Court analyzed the procedural route available. It distinguished rejection under Order 41 Rule 3 (for improper form) from dismissal under Rule 11 (when barred by limitation). The Court observed that rejection on the ground of limitation amounts to dismissal and is appealable. Since no appeal against the 6 January order was filed, a review under Order 47 Rule 1 was competent (and the applicant did seek review). There being no appeal from an order rejecting review (Order 47 Rule 7), the petitioner was entitled to come in revision against the District Judge's order rejecting the review. Thus the application to this Court in revision was not incompetent.
  6. Final balancing: Because the appeal was found incompetent for lack of proper court-fee permission, the Court held the petitioner's revision application must be rejected on that ground (despite the favourable finding on limitation).

Holding and Implications

Holding: Application rejected.

Direct consequences and practical implications (as explicitly recorded in the opinion):

  • The Court held that, although on limitation grounds the appeal was within time, the memorandum of appeal was not competent because the requisite court-fee had not been properly paid with judicial permission; therefore the appeal cannot be entertained.
  • The petitioner's application for revision was rejected and costs were awarded to the opposite party. The hearing fee ordered was one gold mohur.
  • The Court also expressed the view that the petitioner's route to this Court was procedurally competent (i.e., the petitioner could seek review and thereafter revision) — but this procedural competence did not salvage the appeal on the substantive defect of insufficient court-fee.
  • No broader or novel legal principle was announced as a new precedent; the Court followed established authorities on entitlement to apply for copies on reopening day and applied statutory provisions (Section 149 CPC and Section 5 Court-fees Act) to the facts at hand. The decision resolves the parties' dispute but does not purport to lay down new law beyond applying existing statutes and precedents.

Outcome recorded in the opinion: "Application rejected." (Costs to opposite party; hearing fee one gold mohur.)

Show full summary ...

    Farzand Ali And Others v. Abdul Hamid And Others Opposite Parties.

    1. This is an application asking us to revise and set aside the order of the District Judge of Purnea dated 26th April, 1920. By this order the District Judge refused to review his order of 6th January, 1920 passed on the memorandum of appeal presented by the petitioner before him.

    2. The petitioner presented an appeal on 3rd November, 1919 from a decree passed by the Additional Munsif of Araria which was signed on 17th September, 1919. The petitioner made an application for copies of the judgment and the decree on 16th September and was required by the office to file the requisite stamps and folios on 18th September, 1919. The note on the back of the copies shows that the requisite stamps and folios were filed on 27th October. The copies were ready on 31st October and were delivered to the applicant on 1st November 1919. The 2nd November being Sunday, the appeal was filed on 3rd November on a court-fee of eight annas whereas the proper court-fee required was Re. 1-8-0. Along with the appeal the applicant also filed an application saying that under Section 12 of the Lim. Act, in computing the period of limitation the entire time from the 17th September to the 1st November be excluded on the ground that the said period was occupied in obtaining copies of the judgment and the decree and also praying in the alternative, for an extension of the period of limitation under Section 5 of the Act in case his appeal beheld not to have been filed in time.

    3. On 18th November, 1919, the office of the District Judge submitted its report on the back of the first page of the memorandum of appeal saying that (1) the court-fee paid was insufficient, and (2) the appeal seemed to be barred by limitation unless the appellant's allegation that the requisite stamps and folios were filed on 19th September and not on 27th October, as noted on the back of the first sheet of the copy, be correct. Upon the note of the office the Court ordered on 25th November: “The matter to be put up in presence of the appellant's pleader.”

    4. On 1st December the Court directed the applicant to file an affidavit in support of the petition within two days. This was not done and on 6th January the Court passed the following order:

    “Affidavit not filed as directed. The appeal seems to be evidently time barred. The appeal is therefore rejected.”

    5. Against this order on 24th January the applicant made an application under O. 47 R. 1 of the CPC, for a review. The Court rejected the application on two grounds, namely, (1) that the appeal was time barred and (2) that the court-fee file was insufficient.

    6. The learned vakil on behalf of the applicant challenges the correctness of both the aforesaid grounds. As to the first ground it is said that the petitioner made an application on 16th September, a day before the decree was signed, and he filed folios and stamps on 19th September a day after they were notified to him, on 18th September, and that, inadvertently, on account of his not being able to procure the sufficient number of folios he filed one deficit folio on 27th October, the day on which the Court reopened after the Puja holidays, and that consequently the delay was not caused by his laches and that he is entitled to the deduction of the entire period. In support of the allegation that he filed folios and stamps on 19th September he relies upon the dates of sale put on most of the stamps fixed to the copies. It may be that the applicant filed them on 19th September as alleged by him, but admittedly the stamps and folios filed by him were short by one folio which was filed by him on 27th October. His explanation as to the reason for not filing all the folios on 19th September has not been accepted by the Court below and I see-no reason to differ from this view of the Court below. It must therefore be held that the requisite number of stamps and folios were not actually filed by the applicant before 27th October, 1919. It would have been well if, where the number of folios are filed on different dates, all these dates were noted on the back of the copy granted so as to enable the Court to find out whether the applicant was in fault or not and also to see whether the case was such in which, under S. 5, extension of time should be granted to the applicant or not. Be that as it may, it will be sufficient for the purpose of this case to hold, in agreement with the Court below, that the requisite number of stamps and folios were actually filed on 27th October, 1919. The decree being dated 17th September, 1919, ordinarily the appeal should have been filed within 30 days from that date, that is, on 17th October, 1919, which was in the midst of the Puja holidays. The appeal therefore under Section 4 of the Lim. Act, could be preferred on the reopening day, namely, 27th October. The applicant was entitled to make an application for copy on that day: vide Bibi Fakhrunissa v. Rambhanjan Singh(1) and also the decision of Sir Lawrence Jenkins, C.J, in the case of Pandharinath Sakha Ram v. Shankar Narayan Joshi(2). His Lordship pointed out that this was the correct interpretation of the law and the invariable rule of practice, and was affirmed by the judicial decisions, notably in the case of Siyadat-un-nissa v. Muhammad Mahmud(3). Having carefully considered the law on the subject, I have no hesitation in following the decision of Sir Lawrence Jenkins, C.J, and I accordingly hold that the applicant was entitled to make an application for copy on 27th October, the day on which the Court reopened after the Puja holidays, and he was consequently entitled to file the deficit court-fee on that date and that further, by so filing, his application of 16th September was kept alive. That being so he was entitled to an extension of time for three days, from the date of the application up to the date of the notification of the requisite stamps and folios, that is, 17th September 18th September and 27th October. Thereafter time was taken for the preparation of the copy up to 31st October, when it was ready for delivery, that is 28th, 29th, 30th and 31st October.

    7. The learned District Judge allowed him the first three days, but not the latter four days. Adding therefore seven days (3-4) to the date on which the appeal should have been filed the appeal filed on 3rd November was within time. There can be no question that he was at least entitled to six days. In that view the appeal should have been filed on 2nd November which was Sunday. Therefore again, under S. 4 he was entitled to file his appeal on 3rd November. Taking any view of the case the appeal filed on 3rd November was therefore well within time and the Court below was wrong in rejecting it on the ground that it was time barred.

    8. The aforesaid finding however does not give any practical benefit to the applicant inasmuch as the Court below has held that the appeal was presented on insufficient court-fee. This was no doubt not the ground upon which the appeal was rejected on 6th January, 1920. The objection however was set forth in the report of the office, dated 18th November, 1919. The applicant contends that the deficiency of court-fee should not debar him from having his appeal admitted and considered on merits, inasmuch as he filed the deficit court-fee on 19th November with an application. This is no doubt true, but there is nothing to show that the Court allowed him to pay the deficit court-fee so as to entitle him to have the benefit of Section 149 of the CPC. It is contended that the court-fee must be deemed to have been accepted, inasmuch as the deficit court-fee was filed just the day following the report of the office and thereafter the Court did not press the objection in its orders of 15th November, 1919, 1st December 1919 and 6th January, 1920. This is however not sufficient for the purpose of applying S. 149 which says distinctly that the deficit court-fee must have been allowed to be paid, by the Court and when so allowed to be paid the payment will have the force and effect as if it was made in the first instance. The permission to deposit the deficit court-fee must be given by the Court after considering the circumstances of the case and the reason for not filing the entire court-fee in the first instance. I therefore agree that the appeal was not presented or sufficient court-fee and therefore under S. 5. Court-fees Act, the appeal was not presented in time. The fact that the Court did not reject the appeal on that ground will not make the appeal fit and competent and remedy the statutory bar imposed upon it under Section 5 of the Court-fees Act. The result therefore is that the appeal, even if it be held as already observed to have been filed in time, was not a competent appeal and it cannot now be entertained. The application must therefore be rejected. In this view it is not necessary to consider the objection of the respondent that the application to this Court is incompetent in view of the fact that the order of the Court of 6th January, 1920 rejecting the appeal amounts to an order dismissing it and was therefore appealable. But, as the point has been raised and the learned vakil has seriously sought my decision thereon, I venture to give my own views.

    9. The memorandum of appeal is rejected under O. 41, R. 3, when it “is not drawn up in the manner prescribed hereinbefore,” that is, as laid down in that order. If the memorandum of appeal is drawn up in proper form it cannot be rejected under that rule, but that if it is barred by limitation it has to be dismissed under R. 11. The rejection of an appeal on the ground of limitation therefore amounts to a dismissal thereof. Such an order is no doubt appealable. The applicant was therefore entitled to prefer an appeal from the order of the Court dated 6th January, 1920. He was also entitled to have the order reviewed under O. 47, R. 1, provided he did not file an appeal against that order: vide O. 47, R. 1(a). No appeal was filed. Therefore his application for review was competent. The application for review was rejected and there is no appeal from an order rejecting a review, vide O. 47, R. 7. The applicant was therefore entitled to come to this Court in revision against the order passed by the learned District Judge rejecting his application for review, which involved the consideration of the order passed on 6th January dismissing the appeal. The application of the petitioner to this Court was therefore not incompetent.

    10. But, on the other grounds already adverted to, the application is rejected and costs allowed to the opposite party. Hearing fee one gold mohur.

    V.S/R.K

    11. Application rejected.

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    Comments

    Farzand Ali And Others v. Abdul Hamid And Others Opposite Parties.
    (Dec 14, 1920)