ACHUT RAMCHANDRA PAI Vs. NAGAPPA BAB BALGYA

JUDGEMENT

(1.) The appellants before us were the plaintiffs in the original suit, and the trial Court made a decree against them. On the last day allowed by the law of limitation they filed their appeal in the District Court. The memorandum of appeal was, however, insufficiently stamped, and the plaintiffs pleader on being questioned as to this replied that he had no funds with which to pay the requisite stamp, and requested that the Court would give him time within which to make the necessary payment. The District Judge refused to grant the time applied for, and rejected the memorandum of appeal.

(2.) The question before us is whether that was a right order. There can be no doubt, we think, that if the document presented had been a plaint and not a memorandum of appeal, the learned Judge s order of rejection would have been unsustainable. That appears to follow from the terms of Order VII, Rule 11(c) which provides for the case of the presentation of a plaint written upon paper insufficiently stamped, and the provision of the law is that such a plaint shall be rejected only if 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. In the case of an insufficiently stamped plaint, therefore, it is clear that provided the insufficiently stamped paper be presented within the time allowed by the law of limitation, the appellant is entitled as of right to demand from the Court that some further time, to be fixed according to the Court s discretion, shall be allowed to him in order that he may make up the deficiency in the stamp. In our opinion a memorandum of appeal stands on the same footing as a plaint for the present purposes. For Section 107, Sub-section 2, of the Code, which reproduces Section 582 of the old Code, provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. Moreover, unless the authority to reject such a memorandum of appeal as this is referred to Order VII, Rule 11 (c), there is not, so far as we are aware, any authority to which such action of the Court could be referred.

(3.) Mr. Sirur for the respondents has urged that the rejection of a memorandum of appeal should be attributed not to Order VII, Rule 11(c), but to Order XLI, Rule 3. It is true that this rule provides for the rejection of a memorandum of appeal in certain cases; but those cases are limited by the preceding rules to cases where the memorandum of appeal is defective in point of form or in respect of the grounds which it must contain, and this rule cannot, we think, be interpreted as covering a case where the memorandum of appeal is rejected by reason of insufficiency of stamp.