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Baijnath Prasad Singh v. Umeshwar Singh

Patna High Court

Aug 10, 1937

Judgment

Subsequent
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Factual and Procedural Background

This is a first appeal from a decision of the Subordinate Judge of Gaya heard by a Special Bench because of an important question about the levying of court-fee on the plaint. The plaintiff sued on a mortgage bond dated 8 June 1918 claiming Rs. 6,549-8-0, for which the leviable court-fee was admitted to be Rs. 502. The plaint was filed on 1 June 1931, which the Court found was the last day of limitation after accounting for holidays, but it was filed with a stamp of only Rs. 11.

Upon filing the plaint the plaintiff petitioned for time to pay the deficiency of Rs. 491-8-0, undertaking to pay by 29 June. The plaintiff repeatedly failed to comply with successive time-orders. The Subordinate Judge granted multiple and progressively short extensions: directions to comply by 3 July (plaintiff then paid Rs. 50 and sought one month's time), an extension to 20 July, then to 31 July (plaintiff paid Rs. 30), then to 10 August, then a one-day extension (plaintiff paid Rs. 295 the next day and later sought two weeks to pay the remaining Rs. 116-8-0), then two days to 27 August, on which date the plaintiff finally paid the remaining deficit of Rs. 116.

After the payment of the deficit the suit proceeded on the merits in the trial Court and resulted in a decree against the defendant. The first appeal was heard by this Special Bench principally because of the question whether the plaint filed without full court-fee on the last day of limitation was a valid plaint and whether the subsequent payment cured any defect with respect to limitation.

Legal Issues Presented

Whether a plaint filed without payment of the whole leviable court-fee (but with the deficiency subsequently paid after extensions of time granted by the trial Court) is to be treated as a valid plaint filed on the original day of filing for the purposes of limitation.
Whether an appellate court may, in an appeal disposed of on the merits, entertain an attack on the trial Court's discretionary grant of extensions of time for payment of court-fee where the aggrieved party did not seek immediate relief (for example by revision or a superintendence application) against that discretionary exercise.
How Order 7, Rule 11, clause (c) of the Civil Procedure Code (CPC) should be interpreted: whether that Rule compels a Court to grant an extension of time to make up a stamp deficiency before rejecting a plaint, or whether the Court retains a discretion to refuse such an application.

Arguments of the Parties

Plaintiff's Position

The plaint was filed on the last day of limitation (1 June 1931) with an insufficient stamp (Rs. 11) and the plaintiff applied for and obtained repeated extensions to pay the deficiency, undertaking to pay by set dates and ultimately paying the full deficit on 27 August.
Implicit in the factual account is the plaintiff's procedural reliance on the trial Court's discretionary allowance of time to make up the court-fee deficiency and on ultimately complying with the payment directions.

Defendant's Position

The defendant contended that the original plaint, being filed without the adequate court-fee of Rs. 502 and filed on the last day of limitation, was not a plaint at all; therefore when the deficiency was only later paid after the period of limitation had expired, the plaint could not be treated as having been properly filed within time.
The defendant sought to attack, in this appeal, the trial Court's repeated extensions of time for payment of court-fee and to base the appeal on the alleged wrongful exercise of judicial discretion in granting those extensions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
1 PLJ 4851 (statement by Chief Justice Sir Edward Chamier)	The settled principle that where a Court has considered the circumstances and exercised discretion on whether sufficient cause exists for filing within time, the High Court in second appeal will not interfere with that discretionary conclusion.	Used by the Bench as an analogue to show that appellate interference is inappropriate after a discretionary extension has been granted and the case decided on the merits; supports the proposition that discretionary acts must be challenged promptly rather than collaterally in appeal.
16 Pat 3712	The authority that where a lower Appellate Court admits further relevant evidence in the exercise of discretion, a second appeal will not normally interfere with that exercise of discretion if no timely steps were taken to challenge it.	Applied to illustrate the broader principle that discretionary acts of lower Courts (trial or appellate) — even if arguably wrong — cannot be upset in a subsequent appellate proceeding where the aggrieved party did not seek immediate corrective relief.

Court's Reasoning and Analysis

The Court began by observing the dual role of the Court: judicial adjudication and collection of revenue (court-fees). It noted that while trial Judges have discretion to allow time for payment of deficient court-fee, that discretion may be reviewable by superior Courts in an appropriate proceeding initiated promptly by the aggrieved party.

The Bench analyzed the statutory framework. It cited Section 6 of the Court Fees Act (which generally prohibits filing of documents chargeable under the schedules unless the schedule fee is paid) and then relied primarily upon Section 149 of the Civil Procedure Code (added in 1908), which authorises the Court, in its discretion at any stage, to permit payment of the whole or part of any prescribed document fee and provides that upon such payment the document shall have the same force and effect as if the fee had been paid in the first instance.

Applying Section 149, the Court held that the trial Judge had (at the very least) a discretion to permit payment of the court-fee after filing. Once the court-fee was in fact paid, the plaint must be treated as having been filed on the day it was originally filed. The Court emphasized that the statutory provisions about court-fees do not strike at the substantive litigation—they operate to withhold judicial process until the fee is paid.

The Bench acknowledged that the trial Judge "acted in a most undesirable manner" by repeatedly granting long extensions, and that such conduct prejudiced the defendant. However, the Court stressed that where a party is injured by an erroneous or outrageous exercise of discretion by a subordinate Court, the remedy is to apply immediately to the superior Court (for example by revision or superintendence). If the aggrieved party allows the case to proceed and does not seek prompt correction, it cannot later collaterally attack the final order on appeal merely on the basis of the earlier discretionary misconduct.

The Court illustrated this principle by analogy to other discretionary powers (extensions under Section 5 of the Limitation Act and admission of further evidence by an appellate Court) and relied on the cited precedents (1 PLJ 4851 and 16 Pat 3712) to show that appellate interference after the matter has been decided on the merits is generally impermissible.

The Bench then addressed Order 7, Rule 11, clause (c) of the CPC, which refers to rejection of plaints insufficiently stamped when a plaintiff fails, after being required by the Court within a time fixed, to supply the requisite stamp paper. The Chief Justice indicated that, although he personally would not be disposed to hold that the Rule absolutely compels the Court to grant an extension, there is a long-standing view in the province (and elsewhere) that the Rule implies an obligation on the Court to grant some time. Justice Mohamad Noor explicitly held that O.7 R.11 makes it compulsory for Courts to give some time before rejecting a plaint. Justice Manohar Lall agreed and added that on a fair construction the Rule sets out conjunctive conditions that must both be satisfied before a plaint can be rejected, and that doubtful fiscal provisions should be construed in favour of the subject.

On the facts, because the trial Judge had a discretion under Section 149 and the plaintiff ultimately paid the deficit within time while the case proceeded, the plaint was to be deemed filed on its original filing date. The defendant's belated attempt in appeal to challenge the earlier discretionary adjournments was held to be impermissible.

Holding and Implications

Holding: Decree modified.

Direct consequences and orders made by the Court:

The decree of the trial Court was modified by agreement between the parties so that the plaintiff's claim for interest was reduced to 12 per cent simple interest instead of the compound interest originally claimed.
The office was directed to work out the amount of the decree in accordance with this compromise.
The plaintiffs were awarded the full costs of the lower Court, the full court-fee, and the costs of the appeal.

Broader implications as stated or implied by the opinion:

The Court reaffirmed that a trial Judge has discretion under Section 149 CPC to allow payment of deficient court-fee at any stage and that, upon such payment, the document shall have the same effect as if the fee had been paid in the first instance.
The Bench articulated the procedural rule that discretionary acts of lower Courts (for example, granting extensions for payment of court-fee) should be challenged promptly by the aggrieved party; failure to seek immediate corrective relief precludes collaterally attacking the exercise of discretion in a later appeal after the case has been decided on the merits.
The Justices recorded their views on Order 7, Rule 11, clause (c), with two members (Mohamad Noor, J. and Manohar Lall, J.) asserting that some time must be given before rejecting an insufficiently stamped plaint and construing the Rule in favour of the plaintiff; the Chief Justice expressed reluctance to dissent from a long-established provincial practice that interprets the Rule as obliging the Court to grant an extension.

The opinion therefore resolved the immediate dispute in favour of treating the plaint (once the deficit was paid) as filed within time and modified the decree accordingly; it also set out procedural guidance on the interplay of court-fee rules, Section 149 CPC, and the necessity of prompt challenges to discretionary acts.

Show all summary ...

Courtney-Terrell, C.J:— This is a first appeal from a decision of the Subordinate Judge of Gaya and is directed to be heard by a Special Bench because of a point of importance arising in connexion with the levying of the court-fee on the plaint. The suit was brought by the plaintiff on a mortgage bond dated 8th June 1918, the claim being for Rs. 6,549-8-0 upon which the court-fee, as is admitted, would be a sum of Rs. 502. The suit was filed on the last day of limitation, having regard to extensions of time which the plaintiff was entitled to by reason of the occurrence of certain holidays. It was filed on 1st June 1931 with a court-fee of Rs. 11. The plaintiff petitioned, when filing his plaint, that he be allowed time to file the deficiency on the court-fee stamp which deficiency amounted to Rs. 491-8.0 and he undertook to pay it on 29th June. On 29th June the plaintiff had not complied with the order for the payment of the balance. The Subordinate Judge, who was in charge of the matter at the time, for some reason took an extremely lenient view of the failure on the part of the plaintiff to pay up the deficit. He directed that the pleader was to comply with the order for payment by 3rd July, and on the same day the plaintiff paid up a further Rs. 50 and asked for one month's time. The order by the Subordinate Judge was that the matter should be put up on 3rd July as he had already directed. When the 3rd July came, the Judge allowed a further extension until 20th July. On 20th July the plaintiff was again not ready and the learned Subordinate Judge allowed him until the 31st of the same month. On the 31st, the plaintiff paid a further Rs. 30 and the Judge thereupon allowed him till 10th August to pay up the balance. When 10th August in its turn came, the plaintiff asked for time until ‘tomorrow’ undertaking to pay on the following day Rs. 295 and the Judge allowed him until the following day. On the next day the plaintiff paid up the Rs. 295 and prayed for two weeks further time to deposit the balance, after the payments I have mentioned, which amounted to Rs. 116-8-0. On 25th August further excuses were advanced owing to an alleged difficulty in the purchase of stamps. The Judge allowed two further days' time, directing payment of the deficit on 27th August and it was not until 27th August that the plaintiff paid up the deficit of Rs. 116.

2. Now the Court has a double function: it has its judicial function to hear and decide cases; it also acts as a collector of revenue, and its duty is to collect the revenue for the Government in the shape of court-fees according to the statutes provided and in exercising that function it has a discretion granted it to allow time. In the exercise of both of these functions Subordinate Courts are under the direction of the High Court. There is no doubt whatever that in this particular case the learned Judge, in exercising his discretion to grant time for the payment of the deficit court-fee, acted in a most undesirable manner and that undesirable exercise of his discretion undoubtedly prejudiced the defendant, although the defendant was no proper party to questions of revenue as between the plaintiff and the Government. It would have been quite possible for the defendant, who was injured by this repeated and unnecessary delay in the levying of the court-fee, to come to this Court and complain that in the exercise of its function as a revenue collector the Court had acted in the matter prejudicially to the defendant and that the discretion vested in the Court to grant adjournments had been improperly exercised. Had such an application been made, no doubt the Court would have, by virtue of its general powers of superintendence of lower Courts, checked the action of the Subordinate Judge. The suit was, after the payment of the deficit, heard on its merits and was decided against the defendant and the action of the Judge in the wrongful exercise of his discretion in permitting extensions of time for the payment of the court-fee is not a matter which concerns in any way the merits of the dispute in the suit which he had to try. It is contended, however, by the defendant that the plaint as originally filed without an adequate court fee of Rs. 502 was no plaint at all, inasmuch as the original plaint was filed on the last day permitted by the Limitation Act after all the extensions had been granted. It is contended that when the deficit on the court-fee had actually been paid and the plaint had become, on the contention of the defendant a regular plaint, the period of limitation for the bringing of the suit had expired.

3. I am unaware of any provision which states that a plaint must be a plaint on which the whole of the leviable duty has been paid and that if the whole of the leviable duty has not been paid, the plaint is as though it had not been lodged at all. The argument is based in the main upon Section 6 of the Court fees Act, which states:

…. no document of any of the kinds specified as chargeable in Sch. 1 or Sch. 2 to this Act annexed shall be filed, exhibited or recorded in any Court of justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid the schedule court-fee. The Court-fees Act was passed in 1870 and Section 149 of the CPC, which was newly added in 1908, expressly provides:

149. Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, 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 force and effect as if such fee had been paid in the first instance.

4. The Judge, therefore, at the very least clearly had a discretion to allow the payment of the court-fee and when the court-fee had been paid, the plaint upon which it was paid must be deemed as having been filed on the day on which it was actually filed. The provision for the payment of court-fees has really nothing whatever to do with the litigation as such; it merely means that notwithstanding that a suit may be brought to compel payment of a debt due, the Court is not allowed to go into the matter and adjudicate upon its merits until the court-fee has been paid and the provisions for court-fees are merely provisions enforcing the payment of revenue by a denial of judicial process to a person who does not pay the provided fees.

5. Now in this case the learned Judge having a discretion to allow time did exercise his discretion. As I have indicated, if the discretion were exercised in an outrageous fashion it would be quite right for the person injured, that is to say the defendant, to come to this Court for relief; but the defendant took no such step and claims to be entitled in appeal to attack the order ultimately passed by the trial Court on the basis of the wrongful exercise of discretion by the Judge in allowing extensions of time for payment of the court-fee. That argument cannot be entertained; it has been attempted in similar cases. I may instance, for example, the case of a Court allowing an extension of time under Section 5 of the Limitation Act. It is not possible after the extension has been granted and after the case has been decided on the merits, for the Appellate Court to interfere with the final order upon the basis of a wrongful extension of time. That point was decided finally by this Court in 1 PLJ 4851 where the Chief Justice Sir Edward Chamier stated:

It is now settled by a long string of authorities that where a Court, after considering all the circumstances of the case, has come to the conclusion that sufficient cause has or has not been established for filing an appeal within time, the High Court in second appeal will not interfere.

6. The same reasoning is applicable to a Court sitting in first appeal, because the matter which was under discussion in that case was in connection with an extension of time given by the first Appellate Court for lodging the appeal. A second illustration is to be found where the first Appellate Court has exercised its discretion to admit further evidence. Let it be supposed that the first Appellate Court in exercising that discretion exercised it wrongfully and admitted further evidence which was relevant to the issues in dispute. It has been decided by this Court in 16 Pat 3712 that no interference in second appeal could take place. In that case the first-Appellate Court had allowed the admission of further relevant evidence. A learned Judge of this Court, sitting singly in second appeal, was disposed to send the matter back to the lower Appellate Court with a direction to dispose of the appeal on the evidence on the record, ignoring the evidence which had been in his view wrongfully admitted though relevant to the issue. In Letters Patent Appeal, however, that view was dissented from and its was held that the lower Appellate Court, having exercised its discretion to take farther evidence and there having been no steps taken by the other party to have that discretion interfered with by way of revision or otherwise, the evidence was rightly taken into account by the Judge in disposing of the case on its merits. I may instance a further possibility. A Judge might grant an adjournment of a case for a period, let us say of five years. At the end of that five years no steps having been taken by the party aggrieved to have such outrageous exercise of discretion corrected, the Judge takes up the hearing of the case upon its merits. It would not be possible for the Court of Appeal to say that the case should not have been disposed of on its merits after the adjournment, although the Court might properly censure the trial Court for having granted such an outrageous adjournment. In short, these exercises of discretion by lower Courts, whether the trial Court or the first appellate Court, must be remedied, if at all, at once by the superior Court on the application of the party aggrieved and it is too late if that party allows the case to proceed and then seeks to interfere with the discretion in appeal.

7. A further point was argued in connection with the consideration of O. 7, R. 11 of the CPC. That Order is somewhat unfortunately worded. It provides for the rejection of the plaint in certain cases, one of them specified in clause (c) being as follows:

… where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamp paper-within a time to be fixed by the Court fails to do so.

8. It has been argued that the meaning of the Rule is that in such circumstances the Court is bound to grant an extension in a case where the plaint is insufficiently stamped and the plaintiff asks for an extension of time for filing the deficit. If the matter had been res Integra, I speaking for myself, would have been disposed to hold that was not the meaning of the Rule and that the Rule necessarily implies first an application to the Court to grant an extension, and does not imply that the Court has no discretion to refuse the application. But a different view of the Rule has for long been held in this province and by the Courts of other provinces, and it has been thought and it is still thought by many that the Rule necessarily implies an obligation on the part of the Court to grant an extension of time. Speaking for myself, I would not be disposed to give any decision which might express as a matter of ruling any dissent from that view, for it is manifestly a convenient Rule for the disposal of justice. It is a matter of some misfortune that the method of collection of revenue should be done through the Courts. An instance of the convenient working of the Rule on the interpretation that it involves an obligation to grant an extension is seen in the case of rent suits. In a great number of cases a tenant merely requires stimulation of legal proceedings to pay up the rent which may be due, and if the landlord could not sue without filing the whole of the court-fee on the first filing of the suit, the result might ultimately be a great deal worse for the tenant it would be firstly a hardship on the land, lord and in the event of the decision being against the tenant, the tenant would ultimately have to pay up the whole of the court-fee in addition to the debt which he owed to the plaintiff landlord. Therefore no great injustice occurs. Indeed there is a convenience in allowing an extension of time. Nevertheless in applications for extension as regards the period of extension of time, Judges should have regard to the justice in each particular case. It might easily be that the proper extension of time in some cases might be a period as short as half an hour or even less and in some cases the extension might be greater and Judges should not automatically grant long extensions of time for the payment of court-fee because of the duty which is owed by the judicial authorities to protect the revenue. This, however, is not a matter which concerns the defendant; the matter is as between the Crown and the plaintiff.

9. In this case the defendant was actually sued in time as provided by the Limitation Act. The fact that the plaint was not properly stamped does not in the least militate against its efficacy, although it might very likely happen that the Court might be prevented from entering into the merits of the suit and from making an order by way of judgment. So much for the point which led to the constitution of this Bench to hear this first appeal. As regards the merits of the appeal itself, that has become a matter of arrangement between the parties: they have consented to the disposal of the first appeal on the basis that the claim for interest made by the plaintiff is to be reduced to 12 per cent, simple interest instead of the compound interest originally claimed. It will be for the office to work out the amount of the decree in accordance with this compromise. The decree of the trial Court will accordingly be modified. The plaintiffs are entitled to the full costs of the lower Court as well as the full court-fee and to the costs of the appeal.

Mohamad Noor, J.:— I entirely agree with the judgment which is delivered by my Lord the Chief Justice. I would, however, wish to add that in my opinion O. 7, R. 11 makes it compulsory for the Courts, before rejecting the plaint, to give some time to the plaintiff to make up the deficiency however short that time may be, and the Court cannot straightway reject the plaint without giving such time.

Manohar Lall, J.:— I also agree. I wish to add that in my opinion the duty of this Court is only to interpret the plain meaning of the words deliberately used by the Legislature in O. 7, R. 11, clause (c) and not to guess the possible intention of the Legislature. When I consider this language, keeping in mind the well-known rule of construction that where there are two possible alternatives, the one more favour, able to the subject must be preferred when a question of forfeiture of rights is involved (because all fiscal statutes should be strictly construed and in cases of doubts in favour of the subject). I find that on a fair construction the statute lays down two conditions which are conjunctive and not disjunctive which must both be satisfied before a plaint can be rejected.

10. This view has been adopted by various other High Courts and is based upon a reasonable construction of the words used by the Legislature. The Courts before whom plaints are presented insufficiently stamped, are required to determine judicially the extent of time which must be given to make up the deficiency. It may be that in some cases a short time should be allowed, while in other cases the facts of the case demand that a longer interval of time should be given to the plaintiff to make good the deficiency, but some time must be given before the plaint can be rejected.

A.L/R.K

11. Decree modified.