CHAKRADHAR DAS Vs. PURNAMASI TRIPATHY

JUDGEMENT

(1.) THE sole opp. party filed Money Suit No. 4 of 1972 before the Munsif, Athmallik for recovery of certain money against the present Petitioner. The suit was posted to 30 -8 -1972 for office note. On this date the office having pointed out that requisite court -fees had not been paid on the plaint the opp. party filed an application for time to pay the requisite court -fees. Upon this application the suit was posted to 9 -9 -1972 on which date the opp. party again applied for time to pay the court -fees. So, the suit was adjourned to 22.9.1972. On this date also the opp. party applied for time and on its application the suit was posted to 5.10.1972 when the opp. party paid a court -fee of Rs. 19/ -. This was again short by Rs. 18/.. The trial Court granted time to the opp. party for payment of the balance court -fees till 28 -10 -1972. On 28 -10 -1972 the balance court -fees not having been paid the trial Court posted the suit to 16.11.1972 for payment of the balance court -fees. On 16.11.1972 the balance court -fees were not paid and the suit was adjourned to 24 -11 -1972 for payment of the deficit court -fees. On 24.11.1972 even though the deficit court -fees were not paid the trial Court lost sight of the fact and posted the suit to 2 -12 -1972 and thereafter to 8 -12 -1972 for filing requisites for issue of notice on the Petitioner obviously after admitting the plaint without payment of full court -fees. On 8 -12 -1972 the trial Court detected its own mistake and fixed the suit to 14 -12 -1972 for payment of deficit court -fees which were paid by the Plaintiff opp. party that day.

(2.) AFTER notice the sale Defendant who is the present Petitioner appeared in the suit and filed an application on 11 -4 -1973 praying for rejection of the plaint as the trial Court could not have admitted the suit and issued notice to the Defendant -Petitioner when admittedly the plaint in the suit had not been properly stamped. This application was allowed by the learned Munsif who by his order dated 25 -6 -1973 rejected the plaint under Order 7, Rule 11, Code of Civil Procedure Code.

(3.) MR . S.C. Mohapatra, learned Counsel for the Petitioner, argues that the trial Court had no authority to admit the plaint and direct the Plaintiff opp. party to file requisites for issue of notice to the Defendant -Petitioner when admittedly the plaint was insufficiently stamped. Therefore, according to Mr. Mohapatra the order admitting the plaint in the suit and the subsequent orders therein were without jurisdiction and hence the trial Court was perfectly justified when it rejected the plaint when this fact was brought to its notice by the Petitioner. It is further urged that' the provision contained in Order 7, Rule 11, Code of Civil Procedure is mandatory and the trial Court cannot but reject the plaint in a suit when it is found that the plaint is not properly stamped unless it grants time to the Plaintiff to pay proper court -fees on the plaint. He, however, does not dispute the position that the trial Court can grant time to pay requisite court -fees on a plaint when the same is found not to have been duly stamped even without a petition praying for time. So, it is contended that the order of the trial Court admitting the plaint when the same was not duly stamped and the subsequent orders in the suit were nullity. The trial Court, therefore, was fully justified in rejecting the plaint on the application filed by the Petitioner. It is said that the order rejecting the plaint passed by the trial Court on 25 -6 -1973 could have been passed on 24 -11 -1972 when as pointed out above the trial Court lost sight of the fact that the plaint had not been duly stamped and passed orders directing the Plaintiff. opp. party to take steps for service of notice on the Defendant Petitioner. For these contentions Mr. Mohapatra relies upon several decisions including a Full Bench decision in Padmanund Singh v. Anant Lal Misser, I.L.R 34 Cal. 20 (F.B.). The facts of that case may briefly be stated thus. The Plaintiffs instituted a suit in which the plaint was insufficiently stamped. They were directed by the Court to pay the deficit court -fees on or before 5th July. The court -fees, however, were not supplied till the 9th July, that is, after the expiry of the time allowed by the Court. The Plaintiffs did not ask for any extension of time nor was any order made by the Court for extension. The plaint was, however, directed to be admitted and registered, and was admitted and registered accordingly. On 2nd March, 1903 which was the date fixed for final hearing of the suit, the Defendants put in a petition praying that the plaint might be rejected under Section 54, Code of Civil Procedure (old) which corresponds to Order 7, Rule 11 of the present Code inasmuch as the deficit court -fees }lad not been paid within the time originally fixed by the Court. This application was allowed and the plaint was rejected. Upon appeal by the Plaintiffs the order of the first Court which operated as a decree was confirmed. The Plaintiffs thereafter appealed to the High Court. One of the grounds taken in support of the appeal was that as the plaint had been actually admitted and registered it could not properly be rejected subsequently. As there was conflict of authorities of that Court, the following question was referred to the Full Bench: