KISAN Vs. MANJAI

JUDGEMENT

(1.) FROM a senior officer in the judicial service of Mr. Atrey's standing and experience one is entitled to expect a much better form of disposal of a suit than what is disclosed in this case. He is also supposed to be aware of the vocabulary of technical expressions which the Civil Procedure Code employs and of the forms of procedure it prescribes. In this case Mr. Bhagade passed an order on 11th July 1925 demanding ad valorem Court-fee from the plaintiffs on a claim valued at Rs. 27,816 which required a Court-fee of Rs. 935. Time was given to the plaintiffs to make up the deficiency till 17th September 1925.

(2.) THE plaintiffs (out of whom three are minors and are represented by the major brother plaintiff 1) found it difficult to raise the money required to make up the deficiency and, therefore, applied for permission to continue the suit in forma pauperis. That petition, however, was rejected on 23rd November 1926, on grounds which form the subject of this revision, which was filed on 18th December 1926. The demand for Court-fee was revived and time granted to make good the deficiency till 20th December 1926. The order demanding Court-fee and fixing 20th December 1926 as the date for its payment does not form part of the order dated 23rd November 1926 under revision, but was separately recorded in the order-sheet with the result that it was not challenged in revision. But all the same the plaintiffs made an application supported by an affidavit on 20th December 1926 for stay of the order demanding Court-fees and of the further proceedings in the suit until the disposal of the revision petition by this Court. The other parties did not object to the application being granted (vide order-sheet dated 20th December 1926) and, therefore, the Court could have straight-off granted it and stayed the further proceedings of the suit and awaited the decision of this Court in revision. But unmindful of the complications which his order might entail, the Judge granted one month's time to plaintiff's to obtain an order of stay from1 this Court, and fixed the case, curiously enough, for a date two months ahead, i.e., for 21st February 1927.

(3.) I think, the applicants' contention is correct and must prevail. A perusal of the order will convince anybody that it is neither a judgment nor a decree, nor could it be styled a decision within the meaning of Order 17, Rule 3, Civil P.C. Much less am I prepared to call it an order of rejection of the plaint, because it does not conform to the requirements of Order 7, Rule 11(c), Civil P.C. It will be seen that the order dated 20th December 1926 does not fix ft time for supplying the requisite stamp paper and, therefore, the plaintiff's failure could, not be visited with the penalty of rejection of the plaint. The dismissal of the suit was, therefore, out of question. Even assuming that the one month's time allowed on 20th December 1926 for obtaining an order of stay from this Court, was time granted to plaintiffs for the doing of an act, still that act in order to fall within the purview of acts contemplated by Order 17, Rule 3, Civil P.C., must be an act necessary to the further progress of the suit; but an act which brings about a stay and thus arrests the further progress of the suit. I can by no stretch of reasoning be interpreted to be an act necessary to the further progress of the suit. The law does not empower the Court to penalize all failures irrespective of the nature of, the acts. But, even then, what is the penalty provided in the rule, not a dismissal of the suit; but what the Court is enjoined to do "notwithstanding such default," is "to proceed to decide the suit forthwith," i.e., without any further adjournment. It is, therefore, clear that it cannot dismiss the suit for non-prosecution as the learned Judge has chosen to do, apparently in his eagerness to secure a mere nominal disposal for statistical purposes, where he was bound to decide, i.e., try the suit on the merits on such material as he had before him at that stage. None who reads the order dated 21st February 1927 will ever characterize it as a decision on the merits of the case. Nor had the learned Judge the mind to draw up a decree, which must follow every judgment, which alone could give the plaintiffs a right of appeal. I daresay that the Judge had not applied his judicial mind to find out the legitimate requirements of the case at that stage, and, had hot the patience even to think out the proper mode of disposal applicable to or provided for a case of this kind. In this state of the record I am constrained to say that the disposal does no credit to the Judge who secured it for merely statistical purpose. The order dated 21st February 1927 set up as a bar to the exercise of my jurisdiction has thus neither the dignity nor the Value or operation of a judgment, or decision or decree or order having the force of decree; it has not got that finality of adjudication which is peculiar to a decree or to the rejection of a plaint which could amount to a decree within the meaning of Section 2, Civil P.C. I have no other alternative but to ignore it altogether and treating the lis as still continuing in the lower Court (the record of the case being only shelved, as it were,, in the meantime), proceed to decide the petition for revision as if nothing had happened to hamper my jurisdiction.