DWARKA NATH BISWAS Vs. KEDAR NATH BISWAS

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in an action for recovery of money. In proof of his claim the plaintiff relied upon an acknowledgment alleged to have been given by the defendant on the 10 April 1903, The suit was commenced on the 10 April 1906, that is, on the very last day prescribed by the Limitation Act for its institution. The plaint was insufficiently stamped and the Court on that day granted the plaintiff time till the 17 April to put in the deficit Court fees. This order apparently was not carried out and on the 18 April the plaintiff asked for an enlargement of the time within which he might pay the Court-fees. This application was, granted and the Court allowed the plaintiff to pay the Court-fees on or before the 28 April. The Court-fees- were actually paid on the 23 April and the case was then allowed to proceed.

(2.) The Court of first instep held upon the evidence, that the acknowledgement alleged by the plaintiff was made out and decreed the suit. Upon appeal the Subordinate Judge has dismissed the suit an the ground that it was barred by limitation. He has out that the order of the Court for of Court-fees was not carried out within the time first allowed, that consequently there was, as he puts it, a breach in the continuity of the proceedings and that, therefore, the suit must be taken to have, been commenced on the 23 April 1906 when the Court-fees were actually paid. In support of this view he has placed reliance upon the principle deducible from the decision of a Full Bench of the Court in the cage of Padmanand Singh V/s. Anant Lal Misser 34 C. 20 and upon the dictum at the learned Judges of the Allahabad High Court in Muhammad Ahmad V/s. Muhmmad Sirajuddin 23 A. 423 at p. 426.

(3.) As regards the first of these cases, it is quite clear that the principle deducible deducible therefrom has no application to the circumstancesof the present litigation. In that case the plaint had been originally presented insufficiently stamped. The plaintiffs were directed by the Court to pay the deficit Court fees within a time prescribed. The order of the Court was not carried out. The plaintiffs did not ask for any extension of time nor was any order in that behalf made by the Court. Court-fees, however, were supplied after the expiry of the time allowed by the Court and the plaint was directed to be admitted and registered. When the case came to be heard the Court was invited to reject the plaint. The question, therefore, which arose was whether it was competent to the Court to reject the plaint under Section 54 (b) of the Civil P. C. of 1882 after the plaint had been admitted and duly registered. The Full Bench answered this question in the affirmative and held that it was competent to a Court to reject a plaint although it had been admitted and duly registered. The question now before me is of an entirely different description. No question here arises as to the power of the Court to reject the plaint. The question which calls for decision is whether the suit is barred by limitation and whether it was competent to the Court after the expiry of the time initially granted to enlarge the time for payment of the deficit Court-fees. The case relied upon, therefore, has no application, either direct or indirect, to the question which has to be decided.