RAM KISHAN SURAJMAL Vs. NATHU RAO JI

JUDGEMENT

(1.) THIS is a plaintiff's application for revision of an order dated 17-1-1957 passed by the Third Civil Judge, Akola, empowered under section 18 of the C. P. Courts Act, dismissing his suit as barred by time.

(2.) THE applicant filed a plaint in which he claimed a decree for Rs. 600/- but paid only a court-fee stamp of Re. 1/ -. He made an application along with the plaint for extension of time to pay the deficit court-fee stating therein that as court-fee stamps of the appropriate value were not available on that date and as that was the last day of limitation for the filing of the plaint he was paying a court-fee of Re. 1/- and wanted an extension of time to pay the deficit. The Court granted him time till 23-6-1956. The applicant paid deficit court-fee on 21-6-1956. Later the defendant made an application for review of the order in which he challenged the correctness of the averment made by the applicant to the effect that court-fee stamps of appropriate denomination were not available on the date on which he presented his plaint. The learned Judge upheld the contention of the non-applicant and held that the application for extension of time was not made bona fide. Upon this view, he held that the suit was not within time on the day the deficiency was made good and dismissed it as barred by time. The learned Judge relied in support of his decision on the view taken in Revansiddapa Appa v. Shankar Appa, ILR 1938 Nag 359: (AIR 1937 Nag 87) (A ). In that case it was held by Pollock J. that if a plaintiff obtains under section 149 of the Civil Procedure Code an extension of time for the payment of the deficit court-fees on a false representation, behind the back of the defendant, the Court granting the extension is entitled to review the order on the general principles that fraud vitiates consent and that no party should be prejudiced by an order made behind his back. The case before Pollock J. was similar to the present and it seems to have been his view that in a case where extension of time is granted the Court can exercise its power under section 149 of the Civil Procedure Code only. However, a different view has been taken in Achut Ramchandra Pai v. Nagappa, ILR 38 Bom 41 at p. 43: (AIR 1914 Bom 249 at p. 249) (B ). That is a Division Bench decision and is binding on me. In that case a memorandum of appeal was presented on an insufficiently stamped paper. The appellant stated that he had no money with which to pay the requisite stamp and sought time from the Court to make necessary payment. The District Judge refused to grant time and rejected the memorandum of appeal. The High Court held that the District Judge was bound to grant time within which to supply the requisite stamp. Batchelor J. who delivered the judgment of the Court has observed:

(3.) WITH great respect to the learned Judges who decided Achut Ramchandra Pai's ease (B) (supra) there is a good deal to be said in favour of the view taken in the Oudh case and certain other cases. However, as already stated I am bound by the decision of this Court and must accordingly hold that the Court was bound to grant time to the plaintiff to pay deficit court-fee.