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Nellavadivu Ammal v. Subramaniya Pillai And Ors.

Madras High Court

Apr 13, 1916

Judgment

Subsequent
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Structured Summary of the Provided Opinion

Factual and Procedural Background

This opinion concerns an appeal to the Lower Appellate Court and principally raises the question whether that appeal should have been dismissed as barred by limitation. The appellant filed an appeal memorandum in the District Court on 8 September 1914 within the 30 days fixed by Article 152 of the Limitation Act (excluding time for obtaining copies). On the same date the appellant presented a separate application to be allowed to appeal as a pauper under Order 44 Rule 1. That pauper application was rejected on 31 December 1914 (during the Christmas holidays). When the courts re-opened on 4 January 1915, the appellant asked for time to pay the required court-fees for the appeal memorandum; the District Court granted time until 25 January 1915, and the appellant paid within that period. The opinion addresses whether the intervening closure of court days and the post-reopening order validating payment of court-fees rendered the appeal timely and legitimate.

The opinion also addresses errors at the trial level: the District Munsif made a statement about an admission concerning whether the plaint properties formed part of a 1910 division; the District Judge treated that statement as an admission in the plaint, which was a mischaracterization. The District Court nevertheless remanded the matter, and the appellate court considered whether that error affected the remand's validity.

Legal Issues Presented

Whether the appeal to the Lower Appellate Court should have been dismissed as out of time (i.e., barred by limitation) given the sequence of events concerning the pauper application and subsequent payment of court-fees.
Whether the order made on 4 January 1915 granting time for payment of the requisite stamp/court-fee (after the pauper application was rejected on 31 December 1914) was legitimate and could validate the unstamped memorandum of appeal.
Whether the District Judge's reliance on a supposed admission (allegedly in the plaint) by the plaintiff was a material error, and if so, whether that error affected the legal validity of the District Court's remand order.

Arguments of the Parties

Appellant's Arguments (as represented by Mr. Govindaragava Aiyar)

When the application to appeal as a pauper was rejected on 31-12-1914, the unstamped memorandum of appeal accompanying that application must be treated as rejected as well, leaving no memorandum on which the court could act on 4-1-1915.
Order 44 Rule 1 applies the provisions for pauper suits "so far as those provisions are applicable" to pauper appeals; by analogy to pauper suits, Order 33 Rule 15 provides that where leave to sue as a pauper is refused the plaint is thereby rejected and the applicant cannot present another such application but must sue in the ordinary way. Applying that reasoning to appeals, when leave to appeal as a pauper is refused the appellant's only remedy would be to present a fresh memorandum of appeal on the proper stamp, which would, in this case, be barred by limitation.
Therefore, the appellant argued that the District Court had no jurisdiction on 4-1-1915 to grant time for payment of the stamp for the earlier unstamped memorandum and that any validation of that memorandum by payment in January 1915 would be ineffective because the appeal was by then barred by limitation.

The opinion does not provide a detailed contemporaneous statement of opposing counsel's arguments; it principally records and responds to Mr. Govindaragava Aiyar's submissions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bai Ful v. Desai Manorbhai (1897) I.L.R. 22 B. 880	Farran C.J.'s reasoning that decision on pauperism disposes of the pauperism application but leaves the memorandum of appeal undisposed; an unstamped memorandum is not a nullity and can be validated by supplying the requisite stamp within time fixed by the court (with reference to O. VII Rule II (c)).	The court respectfully adopts Farran C.J.'s reasoning and follows it to uphold the validity of the order granting time to pay the stamp duty and to treat the memorandum as capable of validation.
Skinner v. William Orde (1897) I.L.R. 2 A. 241	Authority from the Privy Council and this Court consistent with the approach that an unstamped document may be validated and that the treatment of pauper applications should permit such validation.	The court cites Skinner v. William Orde as consistent authority supporting the position that the memorandum can be validated and that the procedure followed was legitimate.
Patcha Sahib v. Sub-Collector of North Arcot (1891) I.L.R. 15 M. 78	Earlier decision of this Court aligned with the view that the memorandum of appeal may survive a pauperism ruling and be validated.	Used as supporting authority for the conclusion that the court could direct payment of the proper stamp duty and thereby validate the appeal memorandum.
Achut Ramachandra v. Nagappa Bal Badrya (1918) I.L.R. 38 B. 41	Authority that the court should direct the appellant to pay the proper stamp duty within a time fixed by the court (in the context of unstamped pleadings or documents), relying on the court's discretion (see also Order 7 Rule 11 Clause (e) and Section 149 CPC).	The court relies on this authority to support the proposition that the District Court had the duty and discretion to direct payment of stamp duty within a fixed time, thereby validating the memorandum presented earlier.
Durgacharan Naskar v. Dookhiram Naskar (1899) I.L.R. 22 B. 856	Observations relevant to the timing and practical difficulties that would follow if rejection of a pauper application ipso facto and always extinguished the accompanying plaint or memorandum.	Cited to show practical consequences and to reinforce the court's rejection of the argument that the rejection of the pauper application must automatically and inevitably destroy the earlier presentation of the memorandum.
Bai Ful v. Desai Manor Bhai (1897) I.L.R. 22 C. 925	Same line of authority (Farran C.J.) cited for the proposition that the District Judge was under no legal obligation to dismiss the memorandum of appeal presented when refusing leave to appeal as pauper.	The court follows this earlier decision to hold that the rejection of the pauper application did not oblige dismissal of the memorandum of appeal; the memorandum could be preserved and validated by payment of duty within time ordered by the court.
Marea Thangathammal v. Iravatheeswara Aiyar (1915) M.W.N. 228	Decision indicating that even where an amended plaint is part of an application to sue as a pauper, the unstamped amended plaint may be treated as if filed on the original presentation date and the court may grant time to pay the necessary court fees so as to make it validly stamped on the original date.	The court uses this case to support the analogy and to reinforce that documents filed with pauper applications can, in appropriate circumstances, be validated and dated to the original filing.

Court's Reasoning and Analysis

The court proceeds in a structured analysis addressing the timeliness and legitimacy of the order that permitted validation of the appeal memorandum after the rejection of the pauper application.

On the temporal issue, the court accepts that the memorandum of appeal was first filed after the period allowed by the Limitation Act had expired but notes that the appellant had earlier filed on 8 September 1914 (within the 30-day period under Article 152) and had contemporaneously presented an application to appeal as a pauper. The pauper application was rejected on 31 December 1914 (a day within the courts' Christmas closure), and on 4 January 1915 the court granted time to pay the court-fee. The court treats the delay from 31-12-1914 to 4-1-1915 as excusable because the court was closed and the subsequent order condoned the failure during those days.
On the legal legitimacy of the 4 January order, the court declines to base its conclusion solely on Section 5 of the Limitation Act (though that provision is referenced by the Lower Appellate Court) and instead relies on procedural rules and prior case law. The court adopts Farran C.J.'s reasoning in Bai Ful that the decision on pauperism disposes of the pauperism application but does not automatically dispose of the separately filed memorandum of appeal; the memorandum, although unstamped, is not a nullity and may be validated by supplying the requisite stamp within a time the court fixes (with reference to O. VII Rule II (c)).
The court analyzes Order 44 Rule 1 (that provisions relating to suits by paupers apply as far as applicable to appeals by paupers) and distinguishes the functions of an application to appeal as a pauper from the memorandum of appeal itself. It observes that while in pauper suits the plaint and the pauper application are integrated, in pauper appeals the memorandum of appeal is a separate paper in the court record even though presented together with the pauper application. Thus, the court reasons, rejection of the pauper application does not ipso facto destroy the separately filed memorandum of appeal.
The court rejects Mr. Govindaragava Aiyar's chain of argument that treats Order 33 Rule 15 (which prevents refiling an application to sue as a pauper after refusal) as determinative for pauper appeals. The court notes the practical and legal difficulties that would follow if a pauper appeal memorandum were always extinguished by refusal of the pauper application — in particular, the near-inevitability that the limitation period for appeals would have expired before a fresh memorandum could be filed after a refusal. The court finds that such an outcome would render a reserved right to file a fresh memorandum illusory.
The court references Achut Ramachandra v. Nagappa Bal Badrya and the discretion conferred by Order 7 Rule 11 Clause (e) and Section 149 of the Civil Procedure Code, to hold that the District Court had the duty and the power to direct payment of the proper stamp duty within a time fixed by the court, thereby validating the previously unstamped memorandum when the appellant paid the duty within the time allowed.
The court also notes supportive observations in Durgacharan Naskar and in further passages of Bai Ful, and it cites Marea Thangathammal as showing that even in pauper suits an unstamped pleading forming part of a pauper application may be treated as filed on the application date if time is granted to pay fees.
On the merits of the underlying dispute, the court records a procedural error: the District Munsif's statement that "it is admitted that the plaint properties did not form the subject-matter of the division" appears to have been an oral admission in argument but was later mischaracterized by the District Judge as an admission in the plaint. The court emphasizes that an appellate court should not lightly doubt a trial judge's statement about an admission made before the Court of First Instance, absent an affidavit from the vakil. Nonetheless, the court finds that this error did not affect the legal validity of the District Court's order of remand.
The court observes that the District Munsif ought to have taken evidence and determined the facts and legal rights regarding the deceased father's interest in the plaint properties and the plaintiff's right to inherit a share; this points to the propriety of remand for further factual determination.
The court suggests a practical procedural improvement: when an application to appeal as a pauper is rejected, the court should immediately pass an order granting reasonable time to pay the stamp duty on the memorandum of appeal; the court expresses confidence that the District Judge would have done so if the point had been drawn to his attention at the time.

Holding and Implications

Holding: The court reaches a twofold practical disposition. On the principal issues relating to the appeal's timeliness and the validity of the order permitting payment of court-fees after the pauper application was rejected, the court upholds the legitimacy of the post-reopening order and proceeds to determine the merits. Ultimately, the court DISMISSES THE APPEAL except as to a minor question relating to the Vakil's fees to be allowed in the Lower Appellate Court.

Implications:

The appellant, having substantially failed on the merits, is ordered to pay the respondents' costs.
The court affirms the principle (following prior authorities) that a memorandum of appeal presented by an alleged pauper is a separate document and, though unstamped, can be validated by payment of the requisite stamp/duty within a time fixed by the court; therefore refusal of the pauper application does not necessarily ipso facto dispose of the memorandum.
The opinion recommends (but does not itself promulgate) a procedural practice: courts should, upon rejecting an application to appeal as a pauper, grant reasonable time to pay stamp duty on the memorandum of appeal to avoid inadvertent prejudice by limitation rules.
The opinion does not purport to create a novel legal principle but follows and applies prior decisions and existing procedural provisions; the decision applies those precedents to uphold the exercise of discretion to permit payment of stamp duty post-reopening and to validate the memorandum.

This summary is based exclusively on the text of the provided opinion. No information not present in that opinion has been added or inferred.

Show all summary ...

1. The first question is whether the appeal to the Lower Appellate Court should have been dismissed as out of time. It was undoubtedly first filed with proper stamp after the period allowed by the Limitation Act had expired. But appellant, having failed on 31-12-1914 in his application for leave to appeal as a pauper, on 4-1-1915 obtained three weeks' time for payment of court-fee and paid it within that period. The delay from 31-12-14 to 4-1-15 may be disregarded, because the court was closed on the days in question and the failure during them must be regarded as condoned by the subsequent order. The question is whether that order was legitimate.

2. I think that it was and with reference to more direct considerations than those afforded by Section 5, Limitation Act on which the Lower Appellate Court has to some extent relied. It has further followed the reasoning of Farran C.J. in Bai Ful v. Desai Manorbhai (1897) I.L.R. 22 B. 880 to the effect that the decision on the appellant's pauperism disposes of his application for leave to appeal as pauper and leaves undisposed of the memorandum of appeal, which must accompany that application. The memorandum, though unstamped, is not a nullity and can be validated with effect from the date of presentation by the supply of the requisite stamp within a time fixed by the court with reference to O. VII Rule II (c). I would respectfully adopt this reasoning since it is consistent with the decisions of the Privy Council and this Court in Skinner v. William Orde (1897) I.L.R. 2 A. 241 and Patcha Sahib v. Sub-Collector of North Arcot (1891) I.L.R. 15 M. 78. It is of course open to the objection that Appeal memoranda in pauper cases are not usually dismissed by any order distinct from that passed on the pauperism application and not in practice returned for payment of deficient duty, as ordinary memoranda would be. But there is nothing in the ordinary practice to prevent such return where, as in this case, the appellant asks for it; and the anomaly, if any, is less than that involved in the alternative view of the law, that O. VII Rule II (c) is inapplicable and the dismissal of the pauper application in effect entails dismissal of the appeal, since time would hardly ever be left for its presentation after the dismissal proceedings.

3. His Lordship next deals with the merits.

Sadasiva Aiyar, J.

4. (After dealing with the merits) Mr. Govindaragava Aiyar rightly brought to our notice what I consider to be a serious error made by the learned District Judge. The District Munsif stated in his judgment that, it is admitted that the plaint properties did not form' the subject-matter of the division between the plaintiff's father and the 1st defendant in 1910. It is clear to my mind that the District Munsif referred to an admission made in the course of the arguments before him. The District Judge says in his judgment that "the conclusion of the Munsif" (about the 1st defendant's right by survivorship) " appears to be vitiated by the fact that there is no admission by the plaintiff in the plaint" (italics are mine) " that the property claimed did not form the subject matter of the division between the father of the plaintiff and the 1st defendant in 1910." The District Munsif did not state that the admission was made in the plaint and it is clear from subsequent statements of the plaintiff himself in answer to interrogatories that the property did not form the subject matter of the division referred to. A statement in a judgment as to an admission made before the Court of First Instance should not be doubted lightly by the Appellate Court, especially in the absence of an affidavit by the vakil who appeared in the Court of First Instance. But this error of the District Court does not affect the legal validity of its order of remand.

5. I shall now briefly consider the final weapon of attack employed by Mr. Govindaragava Aiyar against the Lower Appellate Court's judgment, namely, that the appeal to that court ought to have been dismissed by that court as barred by limitation. The appeal memorandum was filed by the plaintiff in the District Court on the 8th September 1914 with the 30 days granted by Article 152 of the Limitation Act, (excluding the time required for obtaining copies of judgment and decree). But he wished to appeal as a pauper and hence, he, in accordance with Order 44 Rule 1, presented a separate application on the same date to be allowed to appeal as a pauper. His application was rejected on 31st December 1914 during the Christmas holidays. (I must here deprecate the practice of pronouncing decisions during the Christmas holidays for the purpose of swelling the statistics of disposal). On the re-opening day (4-1-1915), the plaintiff wanted time to pay the necessary court-fees on the appeal memorandum and he was given time till 25th January '15 and he complied with that order. Mr. Govindaragava Aiyar argued that when the application to appeal as a pauper was rejected on 31-12-1914, the unstamped appeal memorandum also must be deemed to have been rejected and there was no jurisdiction in the District Court to pass any orders relating to it on 4-1-1915. The chain of argument was somewhat as follows:--" Order 44 Rule 1 states that the provisions relating to suits by paupers shall be applied as far as possible to applications to appeal as pauper. Order 33 Rule 15 provides that when an order is passed refusing to allow an applicant to sue as a pauper, he cannot file another application of the same nature and he can only bring a suit in the ordinary manner, (which should of course, on the date of its institution fall within the limitation period prescribed for the suit). Hence, when the application to appeal as a pauper was rejected, the only remedy of the appellant was to file a fresh memorandum of appeal on the proper stamp subject to the law of limitation. "When the plaintiff paid the proper stamp duty in January '15, the old memorandum of appeal should be treated as a fresh memorandum presented in proper form on that day. But on that day, the appeal was barred by limitation ", I am unable to accept the validity of the above argument. In the first place, the provisions relating to pauper suits are to be applied to pauper appeals only " so far as those provisions are applicable" (Order 44 Rule 1). While the plaint in a pauper suit forms an integral portion of the pauper application itself (see Order 33 Rule 2), the memorandum of appeal presented by an alleged pauper is a different paper in the Court's record from the application for permission to appeal as a pauper though the two are to be presented together. (See Order 44, Rule 1). While it might therefore be legitimately argued that the rejection of the application to sue as a pauper carries with it the rejection of the plaint contained in that application and hence Order 33 Rule 15 leaves to the applicant as sole remedy the bringing of a fresh suit in the ordinary form, the rejection of the application to appeal as a pauper leaves the separate memorandum of appeal intact. It was, no doubt, unstamped and the duty of the Court is fas pointed out in Achut Ramachandra v. Nagappa Bal Badrya (1918) I.L.R. 38 B. 41, to direct the appellant to pay the proper stamp duty within the time fixed by the Court (see also Order 7 Rule 11 Clause (e) and Section 149 of the Civil Procedure Code corresponding to but much wider in its terms as regards the discretion given to the Court than the old Section 582 A.). As pointed out by my learned brother during the course of the argument, if the rejection of the application to appeal as a pauper ipso facto carried with it the rejection of the memorandum of appeal, the right conceded as reserved to him to file a fresh memorandum of appeal on the proper stamp would be almost wholly illusory as the 30 days fixed for the filing of an appeal would have expired before the application is disposed in the usual course after notice to the other side and to the Collector (where the suit itself was not brought by the plaintiff as a pauper). (See also observations in page 929 and 930 of Durgacharan Naskar v. Dookhiram Naskar (1899) I.L.R. 22 B. 856 and Bai Ful v. Desai Manor Bhai (1897) I.L.R. 22 C. 925). The limitation periods for suits scale up to 60 years and a person who wishes to sue as a pauper might be expected by the legislature to file his paper containing his plaint allegations and the application for leave to sue as a pauper) in sufficient time before the expiry of the limitation period to permit his bringing a fresh suit within the limitation period if his application is finally rejected. This cannot be reasonably expected of a person who wishes to appeal as a pauper. I am therefore prepared to follow the opinion of Farran, C.J. in Bai Ful v. Desa Manor Bhai (1897) I.L.R. 22 C. 925, that " the District Judge was under no legal obligation to dismiss the appeal presented by the appellant when he refused leave to the appellant to appeal as a pauper." This Court in Marea Thangathammal v. Iravatheeswara Aiyar (1915) M.W.N. 228, seems to have gone so far as to decide that even in the case of an application to sue as pauper, the amendment of the plaint contained in the application to sue as a pauper does not prevent the court from treating the unstamped amended plaint forming part of the application as a plaint filed on the original date of the presentation of the application and does not prevent the granting of time to pay the necessary court fees thereon so as to make the amended plaint become a validly stamped plaint presented on the original date. The distinction between the filing of the application for leave to appeal as a pauper and the filing of the appeal memorandum is further indicated by two separate articles of the Limitation Act (152 and 170) dealing with them. I would, in this connection suggest that there might be a rule framed that when-ever an application to appeal as a pauper is rejected, the court should at once pass an order granting reasonable time to the appellant to pay the stamp duty due on the memorandum of appeal. I have no doubt that the District Judge would have passed such an order in this case on the date of the order rejecting the application if the matter had been brought to his notice.

6. The District Munsif ought to have taken evidence and come to a conclusion on the evidence (and on the law applicable) as to the extent and nature of the rights, if any, which the plaintiff's father owned in his plaint properties at his death and the plains tiff's right to inherit a share therein.

7. In the result I would dismiss the appeal except on the minor question of the Vakil's fees to be allowed in the Lower Appellate Court. The Appellant who has substantially failed must pay the respondents' costs.