S VISWESWARA SARMA Vs. DRTMNAIR

JUDGEMENT

(1.) I do not think we ought to interfere with an established practice in this Presidency unless we are fully satisfied that the practice is contrary to law. In this case, on the facts stated in the Order of Reference, I am not so satisfied.

(2.) The plaint presented to the Small Cause Court is the same plaint as that which was presented to the City Civil Court and returned by that court under Order VII, Rule 10, of the first schedule to the Code of Civil Procedure. The amount actually paid on the plaint is an amount which satisfies the requirements of Sections 71 and 75 of the Presidency Small Cause Courts Act, 1882, and the notifications under the latter section. No doubt the stamp on the plaint when it was presented to the City Civil Court was cancelled by the City Civil Court in pursuance of Section 30 of the Court-fees Act, because the court purported to "act upon" it by returning it. But I do not find anything in the Court-fees Act which compels me to hold that the plaint when presented to the Small Cause Court was unstamped quoad the cancelled stamp. The analogy of the cancelled postage suggested by In re. Bai Amrit (1884) I.L.R. 8 B. 387 does not seem to me to be in point. If it were, it might be pointed out that the postal regulations do not require a new stamp when a letter is re-addressed and re-delivered. The provision in Section 28 of the Court-fees Act that no document which ought to bear a stamp under that Act shall be of any validity unless it is properly stamped, affords us no assistance on the question whether, on the facts stated, the plaint was properly stamped when presented to the Small Cause Court. The provision in the same section that when a document is amended in order to correct a mistake a fresh stamp is not necessary - no doubt on the "expressio unius" principle - lends some support to the conclusion that the document in question in the present case was not properly stamped. The same observation may apply to the last paragraph of Section 19-A and Section 40(3) of the Presidency Small Cause Courts Act. But, as pointed out in the Order of Reference, "where the transfer of the suit or the re- presentation of the plaint is to the High Court on the Original Side there may be a special need for a specific provision as regards the deduction of the fee already paid as the system of charging court-fees is essentially different under the Rules of Practice applicable to the Original Side." Sections 20 and 21 of the old Code of Civil Procedure, as the Order of Reference points out, have not been reproduced in the present Code.

(3.) The observation of the Full Bench of the Bombay High Court in Prabhakar Bhat v. Vishwambar Pundit (1884) I.L.R. 8 B. 313 "where a court-fee on the institution of a suit has been paid in a court which cannot possibly afford the relief sought, it does not seem consistent with sound principle that the plaintiff should be condemned to lose the fee thus paid, or that he should not be allowed to ask without paying a second fee for an adjudication from a court which cm really give one," is no doubt obiter, but, in the absence of express statutory provision the other way, I am prepared to apply it to the facts of the present case. In so doing I am upholding what is admittedly the settled practice in this Presidency and what would seem to be, though I have no information as to this, the settled practice in Bombay.