BENI PRASAD Vs. OM PRAKASH

JUDGEMENT

(1.) This is a first appeal by the plaintiff under the following circumstances: The plaintiff obtained a preliminary decree for dissolution of partnership and accounts and the date of the judgment on p. 9 is 30 April 1928. The plaintiff asked for the relief that the plaintiff be declared entitled to one-half of an amount in deposit in a Court and the valuation of the suit was Rs. 51,000 and the court-fee paid was Rs. 10 for the declaration mentioned and Rs. 75 for a declaration that the partner, ship had ceased to exist. An objection was taken in the written statement of the defendants that the court-fee paid was insufficient and this formed the subject of Issue 2. The plaintiff must have been aware therefore from the date of filing the written statement in 1927 that this matter of the court-fee would arise in the case and after arguments the Court held on p. 7 that the plaint was insufficiently stamped and an ad valorem court-fee was required on Rs. 51,000. The order in the judgment on page 9 stated: The plaintiff shall make good the deficiency of court-fee within a week. On his failure to do so his plaint shall be rejected and this preliminary decree shall be a nullity.

(2.) This judgment was pronounced and signed by Mr. Shamsul Hasan, First Subordinate Judge, on 30 April 1928, presumably in the presence of counsel for the parties as directed by Order 20, Rule 3. That Rule provides as follows: The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review.

(3.) Now apparently Mr. Shamsul Hasan was absent from Court for some days and Mr. Sheo Narain Vaish who was a Munsif in the District was in charge of whatever duties he could perform in the Court of the Subordinate Judge. On 5 May 1928 the plaintiff made an application, printed on p. 11, stating, no doubt, that the suit was decided on 30 April 1928 but omitting to mention that there was an order in the judgment that the court-fee was to be paid within one week, otherwise the plaint would be rejected and the preliminary decree should be a nullity. The application merely stated that: The plaintiff was ordered to pay additional court-fee. As the amount of the court-fee is considerable, sufficient time may be allowed to make arrangements for the payment of the same. The time of one week is quite short, and 15 days were asked. There is a note, presumably of the munsarim, that the court-fee was Rs. 1200 and Rs. 85 have been paid and the deficiency was Rs. 1115. No notice was issued of this application as the officer-in-charge considered that it was probably a routine matter and he wrote an order on 7 May 1928 : "Time extended up to 12 May." The court-fee was paid in this extended period. The fact that this officer was not a Subordinate Judge is shown by the preliminary decree on p. 10 which he signed "Sheo Narain Vaish for First Subordinate Judge." That decree was actually signed on 16 May. It bears the date of the judgment 30 April 1928 and states: The plaintiff is to make good the deficiency in-court-fee within a week. If the deficiency in court-fee is not made good, his claim shall be struck off and this preliminary decree shall be considered as cancelled.