1. The main question that requires decision in these cases is: whether a plaint presented within the period of limitation with insufficient stamp and the deficit in the stomp duty made good with in the time granted by the Court under Order 7 Rule 11 of the Code of Civil Procedure but after the expiry of the period of limitation, is liable to be rejected as barred by limitation.
2. The facts giving rise to the question are these: The plaintiffs and the defendants in both the suits, O.S Nos. 516 and 518 of 1970 on the file of the Court of the II Additional District Munsif, Visakhapatnam, ere common. The plaintiffs filed O.S No. 516 of 1970 to recover a sum of Rs. 4,073-76 Ps. being the principal and interest due on a promissory note, Ex. A-5 dated 9-4-1976 executed by the defendants in favour of the plaintiffs for Rs. 3,500/-. The suit O.S No. 518 of 1970 was filed to recover a sum of Rs. 2,909/- being the principal and interest iue on a promissory note Ex. A-6 dazed 11-4-1976 executed by defendants in favour of the plaintiff-Firm for Rs. 2,500/-. The suit O.S No. 516 of 1970 was filed on 5-4-1969 with a nominal Court-fee of Re. 1/-. The plaint was returned on 7-4-1 969 under Order VII Rule 11 C.P.C giving a week's time for the plaintiff to supply the requisite stamp, the deficiency in stamp was duly made good and the plaint was re-presented on 11-4-1969 apparently after the suit was barred by time. The suit O.S- 518 of 1970 was also presented with a nominal Ccurt-fee of Re. 1/- on 9-4-1969. The plaint was returned on 11-4-1969 under Order VII Rule 11 C.P.C requiring the plaintiff to make good the deficiency in stamp within a week's time. The plaint was re-presented good the deficiency in Court-fee on 15-4-1969 obviously after the suit promissory note was barred by time. Both the suits were properly valued. The defendants mainly pleaded that the suits presented on 11-4-1969 and 15-4-1969 were barred by limitation and that the two promissory notes Exs. A-5 and A-6 were renewals of the earlier promissory notes and were not supported by consideration, it was also pleaded that the defendants were entitled to the benefits of Act IV of 1938. The trial Court after framing the necessary issues and on a consideration of the evidence adduced by the parties held that the suit promissory notes were executed for cash consideration, that they were not renewals of earlier debts and that therefore the suit debts were not liable to be scaled down. On the question whether the suits were barred by limitation as the suits were not presented with sufficient Court-fee within time, the learned District Munsif held that the deficiency in Court-fee was made good within the time granted by the Court and therefore, the plaints cannot be rejected. Accordingly both the suits ware decreed by the trail Court. On appeal by the aggrieved defendants, the same contentions raised before the trial Court were repeated and repelled by the Appellate Court. That in brief is the genesis of these second appeals by the defendants.
3. The central argument, if not the exclusive argument, in these appeals that dominated the debate before me was whether a suit presented with insufficient Court-fee within the prescribed period of limitation and the deficit stamp supplied within the time allowed by the Court but after the expiry of the period of limitation, is liable to be rejected as barred by limitation.
4. The facts are not in dispute. The suits were presented with a nominal Court-fee stamp within the prescribed period of limitation. They were properly valued. The Court granted some time under Order VII Rule 11 C.P.C, to the plaintiff to pay the balance of Court-fee, The deficiency in Court-fee stamp was made good within the time allowed by the Court, but after the expiry of the period of limitation. The question is whether the suits so presented were not barred by limitation. It may be seen that in both the cases the deficit Court-fee was paid within the time allowed by the Court, but beyond the period of limitation. It is the contention on behalf of the appellants-defendants that the plaints were not presented with sufficient Court-fee within the period of limitation and, therefore, the suits were barred by time. The answer to the question must be found from the provisions of Order VII Rule 11 C.P.C and Section 149 C.P.C Rule 11(c) of Order VII which is material for our purpose reads as follows:
“11. The plaint shall be rejected in the following cases:
a) xxxxxxxxx
b) xxxxxxxxx
c) 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;
d) xxxxxxxxx
Provided that the time fixed by the Court for the Correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of exceptional nature from confectioning the valuation or supplying the requisite stamp-paper as the case may be, within the time fixed by the Court and that refuse to extend such time would cause grave injustice to the plaintiff”.
5. In is manifestly clear from Clause (c) of Rule 11 that there must be some stamp on the plaint and the plaint presented without’ any stamp cannot, fail within the scope of the clause. A plaint presented with some stamp cannot be rejected under the rule for insufficiency of stamp unless the plaintiff is given an opportunity to supply the deficit stamp within the time fixed by the Court. If he fails to do so, then alone the plaint is liable to be rejected. However, still there is a discretion in the Court to enlarge the time fixed by it to make good the deficit Court-fee. No doubt the plaintiff cannot claim as of right the extension of time fixed by the Court. The discretion completely vests in the Court. Section 149 C.P.C empowers the Court to allow the party at any stage to pay the requisite Court-fee after the institution of the suit and further provides that such payment shall have the same effect as if it has been paid in the first instance itself. The effect of the provision is that in a case where a plaint is presented with insufficient Court-fee within the period of limitation, it will not be time barred provided the deficit Court fee is paid within the time granted by the Court although by the time the deficit Court-fee is paid the period of limitation had expired. This provision as observed by the Supreme Court in The State of U.P v. Rahmatullah (1) (1970) 1 SCC 769 : A.I.R 1971 Supreme Court, 1374 mitigates the rigour of section 4 of the Court Fees Act, 1870 which provides that no document chargeable with Court-fee under the Act shall be filed or recorded in any Court of justice, unless the Court-fee payable in respect thereof is paid. But it should be made clear that the section does not confer any right on the party to supply the deficit Court-fee at any stage of the suit. It vests a discretion in the Court to allow or not such time. When once the discretion is exercised and the time is granted and the payment is made within the time allowed, the suit will not be barred by limitation.
6. It is, however, argued by the learned counsel for the appellants that the plaintiff failed to file any application for grant of time to pay the full Court-fee and that the Court in any case was in error in granting time even without any application without notice to the defendants.
7. The learned counsel invited my attention to the decision of the Madras High Court, in the matter of C. Padmanabha Ayyangar, Advocate, Madras (2) A.I.R, 1939 Madras, p. 1 wherein the practice of the legal practitioners filing the memorandum of appeal on the last day of limitation knowing full well that it was understamped and hoping that the Court would be persuaded to accept the deficiency later was deprecated as it was held to be not in accordance with the high traditions of the profession of an advocate. It was further observed that the High Court should not tolerate practices of such nature. The question in that case was whether the conduct of the advocate in filing an appeal with deficit Court-fee amounted to professional misconduct when the client had paid a sum of Rs. 175/- on account of the costs of the appeal, and the appeal was presented with deficit court-fee of Rs. 50/- adjusting a sum of Rs. 100/- towards his fee.
8. In Janaswami Venkataseshamma v. Prativadi Bhayankaram Ranganaryakamma (3) A.I.R 1950 Madras 769, relied upon by the learned counsel, the appeal was not presented with deficit Court-fee within the time prescribed by the Court. There was a delay of two year in the re-presentation and the delay was excused without notice to the other side. The learned Judges observed:
“We cannot tolerate the practice of filing an appeal with a patently deficit Court-fee simply because before the last date of filing the appeal the appellant is unable to secure enough money for payment of the full court fee and then taking to raise the deficit amount and get the delay excused as a matter of course”.
9. It is thus clear in that case, the deficit Court-fee was not supplied within the time prescribed by the Court, and the delay in re-presentation was excused without notice to the other side. One other decision relied upon by the learned counsel was Revenue Divisional Officer v. T. Laxmi Narayana (4) AIR 1975 Andhra Pradesh, 109. In this case, the observations of the Madras High Court in the cases cited supra were referred to and approved.
10. The Punjab High Court in Jai Bhagwan v. Om Prakash (5) AIR 1969 Punjab & Haryana, 310 dismissed the second appeal on the ground that it was barred by limitation inasmuch as the deficiency in Court-fee stamp was made good beyond the period of limitation. These observations were made in a second appeal before the High Court. The provisions of Order VII Rule 11(c) C.P.C do not apply to appeals. They are governed by Order 41 C.P.C Under Order 41(3) C.P.C an appeal presented after the expiry of the period of limitation shall be accompanied by a petition supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient case for not preferring the appeal within such period. I am fortified in my view by a Division Bench decision of the Madras High Court.
11. The Madras High Court in Pamidimukkala Sitharamayya v. Ivaturi Ramayya (6) AIR 1938 Madras, 316 observed.
“The provisions in Order 7 R. 11(c) do not apply to appeals. The appellate Court is entitled to reject an appeal in which the full Court-fee have not been paid without calling upon the appellant to pay the deficient Court-fee. So far as memoranda of appeals are concerned, express provision is made in 0.41 R3 for their rejection on the grounds stated in that rule”.
The Division Bench decision is binding upon me.
12. It would now be relevant to refer to two rulings of the Madras High Court which are directly on the question involved in these cases. The earliest decision is of Subramania Ayyar, J., in Assan v. Pathumma (7) 1899 I.L.R 22 Madras, 494 wherein the (earned Judge held;
“That, the said plaints having been filed in time, the fact that they were not duly stamped or were entirely unstamped when the period of limitation had expired did not render them time barred; since the plaint must be regarded as having been presented on the day upon which they were filed. It cannot be inferred from the Limitation Act, 1877, that the word “plaint” inlaw means merely “a private memorial tendered to a Court in which the person sets forth his cause of action; the exhibition of an action in writing”. Whether any Court-fee is payable in an action commenced by the plaint, and if so when and how it should be paid, are matters that are foreign to the question whether the document is a plaint or not. The Court Fees Act and the Limitation Act are entirely different in their purpose and scope and neither can be taken to control or qualify the other.”
13. After an exhaustive consideration of all the decisions of the several High Courts, the Full Bench in Gavaranga v. Botokrishna Patro (8) 1909 I.L.R 32 Madras, 305. observed.
“When a plaint is presented on a paper insufficiently stamped within the prescribed period of limitation, and the time is given by the Court under Section 54(b) of the Code of Civil Procedure to make good the deficiency and the deficiency is supplied within the time fixed by the Court, but after the period of limitation expired, the suit is not barred by limitation.
14. That is exactly what happened in the two cases now before me. This Full Bench decision of the Madras High Court was approved by the Supreme Court in Mannan Lal v. Mst. Chotka Bibi (9) (1970) 1 SCC 769 : AIR 1971 Supreme Court, 1374.
The Supreme Court observed:
“Apart from the decisions bearing on the point there can in our opinion be no doubt that section 4 of the Court Fees Act is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonise the two sets of provisions which can only be done by reading, section 149 as a proviso to section 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it.”
15. Therefore, I have no hesitation in holding that the suits were not barred by limitation.
16. On the question whether Exs. A-5 and A-6 were renewals of earlier promissory notes, both the courts of fact on a consideration of the evidence held that they were not the renewal promissory notes and that they were executed by the defendants and supported by consideration. This is a pure finding of fact concurrently recorded by both the courts below the correctness of which cannot be permitted to be canvassed in a second appeal.
17. In the result, the second appeals fail and are accordingly dismissed with costs;