GARAPATI VENKANNA Vs. MULLAPUDI ATCHUTARAMANNA

JUDGEMENT

(1.) It becomes necessary to state a few facts in order to make the questions of law raised intelligible. The suit may be shortly described as one brought by the reversioners of a deceased Hindu. One Brahmayya(senior) died somewhere about the year 1864 and was succeeded by his widow Subbamma, who died on 27 September, 1914, that is, about 50 years later. On her death the estate vested in two persons named Ramayya and Brahmayya (junior), sons of two brothers. After Ramayya's death his sons (plaintiffs 1 to 5) along with Brahmayya (junior) executed on 21 November, 1916, the document Ex. F, in favour of the 6 plaintiff, a stranger. On 27 September, 1926, that is, on the last day of the period provided by the law of limitation, the present suit was brought. The plaint, which purports to have been filed by plaintiffs 1 to 6, was in fact signed and verified only by the sixth plaintiff, who described himself as the authorised agent under Ex. F of plaintiffs 1 to 5. It must be mentioned that although the plaint contains the statement that the correct court-fee of Rs. 80 odd was paid the amount of court-fee actually paid was Re. 1. The plaint was then returned for various defects, two of which only concern us here: (i) want of proof that the sixth plaintiff was the duly authorised agent of plaintiffs 1 to 5; (ii) making good the deficient court-fee.

(2.) By way of curing the first defect, Ex. F was produced but the Court refused to recognise it as containing sufficient authorisation. Then on 27 October, 1926, the plaintiffs 1, 2, 4 and 5 filed a verification and on their behalf a pleader entered appearance. So far as the third plaintiff was concerned, nothing was done by him or on his behalf., As to the second defect, there was default made in the payment of the deficit court-fee within the time limited. Two further extensions were given and on 14 October, 1926, the deficiency of Rs. 80 was made good. There is one other fact which must be mentioned. Brahmayya (junior) who, as stated above, was among those that executed Ex. F, having died previous to the suit, his sons were impleaded as defendants 6 and 7. The lower appellate Court, agreeing with the trial Court, has passed a decree in favour of the plaintiffs and defendants 6 and 7. The second defendant, who has been in possession of the estate, has filed the present appeal. He is the grandson of Subbamma's sister's daughter. On the merits he put forward a certain defence, which the lower Courts have refused to go into, on the ground that the plea was raised too late. Whether in doing so they have acted rightly or not, is a matter I need not consider, in the view I have taken as to the question of law raised.

(3.) The first contention advanced for the appellant is that the trial Court acted wrongly in extending the time for making good the deficiency in the court-fee. Where a plaint is written upon paper insufficiently stamped, the Court is bound to give the plaintiff time to make up the deficit; only when he fails to comply with the order, the Courtcan reject the plaint; that the plaint is presented on the last day of the period of limitation makes no difference, that is, theeffect of Order 7, Rule 11, Civil Procedure Code. Again whether the payment of insufficient fee was by design or due to inadvertence, the Court is bound by the mandatory terms of it, to give effect to this provision. There is some inconsistency between this rule and Section 28 of the Court Fees Act, as the latter provision does not extend to deliberate payment of insufficient fee. But the rule generalibus specialia derogant, must, I take it, apply as the section in the Court-Fees Act refers to documents generally, whereas the rule in the Code applies to plaints alone. This being the law, the Court's action in giving the plaintiff time originally cannot be questioned. But once the time was fixed, it was no longer open to the plaintiff to demand as a matter of right, that the time should be extended. The power to grant extension vests in the Court either under Section 148 or 149, Civil Procedure Code. Under either of those sections, the question is one of the Court's discretion and not the plaintiff's right. Section 149, it may be noted, expresssly provides for a defective document being retrospectively validated. It is obvious that the Court must exercise its discretion, not capriciously, but judicially and reasonably. There is nothing on the record to show that the Court in granting the extension, applied its mind to the question at all. The suit was filed on the last day of the 12 years period, by one who was gambling in litigation. Then it is suggested that this plea was not taken in the Courts below. How are defendants to blame when they were not apprised of the order made behind their back? However, I do not propose to rest my judgment on this ground, as giving effect to the maxim omnia praesumuntur rite esse acta, I should presume that there was a real exercise of discretion (see Raghunandan Sahay V/s. Ram Sunder Prasad (1924) I.L.R. 4 Pat. 190, Gaya Loan Office, Ltd. V/s. Awadh Behari Lal (1916) 1 Pat L.J. 420, Ram Sahay Ram Pande V/s. Kumar Lachmi Narayan Singh (1917) 3 Pat L.J. 74, Suraj Pal V/s. Utim Pandey (1920) 56 I.C. 47 Baijnath Prasad V/s. Umeshwar Singh A.I.R. Pat. (1937) 550 (S.B.), Priyanath V/s. Meajan (1915) 24 C.L.J. 88 and Basavayya V/s. V enkatappayya .