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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 111 of 155)
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he alleged to be due to him from certain defendants, who are in this Court
respondents. The lower appellate Court has found that the moneys which
the appellant claims as advanced by, and therefore due to him, were so
advanced, and it has further found that the letter bearing date the 17th
of April, 1886, purporting to have been written by the respondents is a
genuine letter and was so written by them. We have not before us any
certain date as to when the moneys now claimed were advanced by the
appellant to the respondents, but it is alleged by the respondents, and not
denied by the appellant, that the moneys, or the main part of them at any
rate, were advanced at a time about the year 1884. The present suit was
filed on the 17th of January, 1889, and it follows as a natural consequence
that the claim of the appellant would stand barred by the statute of limit-
ation, unless it can be shown that it is aided by any special section. The
letter of the 17th of April, 1886, becomes therefore a piece of most important
evidence to the appellant, inasmuch as he claims that upon its terms the
respondents have executed within the period of three years from the date the
moneys were advanced, an acknowledgment of their liability to pay those
moneys within the meaning of s. 19 of the Indian Limitation Act (Act No.
XV of 1877). The lower appellate Court had this document before it, but
deemed itself precluded from treating it as evidence, because in its opinion
the document required a stamp under art. 1, sch. i of the Indian Stamp
Act, 1879, and it had not been stamped at the time of execution.

* Second Appeal, No. 444 of 1890, from a decree of Pandit Rai Indar Narain.
Additional Subordinate Judge of Aligarh, dated the Gib. January, 1690, confirming a
decree of Maulvi Syed Amjad-ullah, Munsif of Haveli, dated the 21st June, 1889.

752



11] BISHAMBAB NATH V. NAND KISHORE 15 AH. 59

The learned Counsel for the appellant urges that this view of the lower appel- 1892
late Court is erro-[58]neous and that the letter was not one whicbjfche law Nov. 9.
required should be stamped. We have had the letter read, and in it the res-
pondents, after setting out that certain moneys had been advanced by the APPEL-
appelknt's agent in connection with the land in suit in which they were LATE
interested, go on to say that they regret that the suit had been decided
against them, that the sum of Es. 340 had been expended in connection
with it and that this money they will have to pay. The letter is a long one, 13 A. 56
and the respondents go on to ask the appellant to be so good as to advance 12 A.W.N.
moneys in order that the suit may be appealed ; as otherwise they will be (1892) 234.
ruined and have to leave the village. Taking advantage of the terms
of the letter the learned Pandit contends that it was an ordinary letter
written in the course of correspondence between the parties and nofe
executed with the exoress intention of supplying evidence of a debt
exceeding Bs. 20 in amount. This being so, he would have us hold that
the document was one which did not require to be stamped under the
provisions of art, 1, sch. i of the Indian Stamp Act (Act; No. I of 1879).
We are of opinion that whether a document of this kind amounts to an
acknowledgment within the terms of art. 1, sch. i of the aforesaid Stamp
Act is a fact which depends in each case upon the intention of the writer.
That intention may well be ascertained by looking to the surrounding
circumstances of the case and what was taking place when the document
was written. We also bear in mind that Acts of the nature of the Indian
Stamp Act should, when there is a doubt as to what construction should be
placed upon their terms, be construed in favour of the subject. We are not
satisfied from the letter thatib was written with the intention of supply-
ing evidence of a debt. It was a letter written at some time before the
period of limitation would expire. Evidence as to the existence and
amount of the original debt at the titae was at hand and readily available
and there is nothing in the terms of the letter, beyond the casual expres-
sion that the respondents would have to pay the money, from which we
could infer an acknowledgment of liability within the meaning of the
article and schedule which we have quoted above. We therefore hold
that, the document was one which did not require to be stamped, and thafc
it [59] was admissible in evidence and wrotigly excluded by the learned
Judge. This being the case, we set aside the judgment and decree of the
lower appellate Court and decree the appeal. As regards the interest
claimed by the appellant we find no evidence, and have not been referred
to any, of any intention to pay interest. The appellant's claim therefore,
so far as regards the principal, will stand decreed and as regards interest,
ifc will stand dismissed with proportionate costs.
BLAIR, J. I agree entirely.

Appeal partly decreed and partly dismissed,



753
A VII 95



15 All. 60 INDIAN DECISIONS, NEW SERIES [Yol.

1592 ISA. 59 = 12 A W.N. (1892) 235.

Nov. 11. APPELLATE OIVIL.

APPEL- Before Sir John Edge, Kt., Chief Justice, Mr. Justice Tyrrell and

Mr. Justice Blair.



CIVIL.

GIRDHARI (Defendant] v. KANHAIYA LAL (Plaintiff-}.*

15 * 39=a [llth November, 1892.]

12 A W N

/jonoi OOP' Civil Procedure Code s. 52 Plaint, form of verification of.

(1892) 239.

In order to constitute a proper verification of a plaint within the meaning of
s. 52 of the Code of Civil Procedure, it is necessary for the person verifying, if
all the fools are within bis knowledge, to state distinctly that they are to his
knowledge true ; and if he has knowledge as to some and only information
and belief as to others, to state to which he speaks from his knowledge and to
which from his information and belief. A verification in the form ; " To the
limit (or extent) of my knowledge the purport of this is true." is not such a
verification as satisfies the requirements of s. 52 of the Code. In the matter of
Opendio Lai Base (1), referred to.

[P,, 1 Ind. Cas. 677 (681) ; R., 18 A. 396 (398) ; 16 A.W.N. 75 (76) ; 10 C.LJ. 91
(100).]

THE facts of this case, so far as they are necessary for the purposes
of this report;, appear from the judgment of the Oourt.

Mr. T. Conlan and the Hon'ble Mr. Colvin, for the appellant.
Munsbi Kashi Prasad, for the respondent.

JUDGMENT.

EDGE, C. J., TYRRELL and BLAIR, JJ. Objection is taken here, and
seems to have been taken in the two Courts below, that the plaint was
not signed as required by s. 51 of the Code of Civil Procedure. It
is alleged on behalf of the defendant-appellant that at the time when
the plaintiff signed the sheet of paper which at present forms the
second sheet of the plaint, the plaint had not been written, [60] in other
words, that what purports now to be the signature to the plaint was a
signature made before the plaint came into existence. We have no doubt
that what is required by s. 51 is that the plaint must be in existence
before the signature is put to it. Our attention has been drawn to the
evidence of the plaintiff's mukhtar or karinda and of the plaintiff himself.
It is somewhat doubtful what the true interpretation of the mukhtar's evi-
dence is on this point. That apoarently was the only evidence which was
looked at by the Subordinate Judgo. To our minds the plaintiff's evidence
makes the matter more clear. However, we are sitting here in second
appeal, and it is not for us to find issues of facts. We remand this case
to the Court of the Subordinate Judge for a finding as to whether the
plaint was written partly on a stamped paper and partly on an unstamped
paper, but was or was not wholly written before what purports to be th
plaintiff's signature was pub to the unstamped paper.

Another objection has been taken as to the nature of the verification.
The verification which was made was as follows : " To the limit of my
knowledge the purport of this is true." That is not the verification which
is required strictly under s. 52. The verification under that section musk



* Second Appeal No. 630 of 1889 from a decree of Babu Kashi Nalh. iBiswasi
Subordinate Judge of Agra, dated the 8th March 1889, confirming a decree of Maulvi
Muhammad Ismail, Munsif of Mathura, dated the 10th June, 1888.

(1) 6 C. 675,

754



11]



MEHDI HASAN 17. TOTA RAM



15 All. 61



be, if all the facts are to the knowledge of the deponent;, a distinct verifi- 1892
cation that they are to his knowledge true. If he has knowledge as to some, Nov. 11.
and only information and belief as to ohhers, the verification should show
as to which he speaks from his knowledge and as to which bespeaks from APPEL-
his information and belief. This matter was discussed in "In the matter LATE
of Upendro Lai Base (1)" and we agree in the view there expressed as to CIVIL.
what the practice should be aa stated in the first paragraph of p. 678 of the
report. The verification in this case aopears to follow or be to the effect of 13 * 89=a
s. 52 of the Code as translated into Hindustani in the authorized venacular 12 A.W.N.
translation of the Code. How it came to be mistranslated in the autho- (1892) 235.
cized version we do not know, probably the translator may have followed
some previous precedents based originally on s. 27 of Act VIII of 1859,
which required a very different verification from that which [61 J is requir-
ed by s. 52 of the present Code. Although the verification is a matter of
great importance, wo do not attach much weight to the error in verification
in the present instance, as the party making it may have been misled by
the authorized translation of the Code. Ten days will be allowed for
objection on the return to the remand.

Cause remanded.



13 A. 61 = 12 A.W.N. (1892) 242.
REVISIONAL CEIMINAL.
Before Mr. Justice Knox.



MEHDI HASAN (Applicant) v. TOTA BAM (OppositeParty)*
[19dh November, 1892.]

^Criminal Procedure Code, ss. 195, 404, 439 Sanction to prosecute Appeal Revision.

The proceeding under a. 195 of the Code of Criminal Procedure by which an
order granting or refusing to graut sanction to preseffute may be set aside is a
proceeding in revi sion and not by wayof appeal.

{P., 23 B. 50 (52) ; Appr., 400. 239 (244) = 13 Cr.L.J. 599 (601) = 17 G.W.N. 91 (93)
= 16 lud. Cas. 167 (169) ; R., 35 A 90.(91) = 11 A.LJ. 11 = 14 Cr.L.J. 47 = 18
Ind.Gas. 271 ; Disc., 26 A. 244 (248) = A.W.N. (1904), 10.]

THE facts of this case, so far as they are necessary for the purposes
of this report, appear from the judgment of KNOX, J.
Mr. Wallach, for the applicant.
Babu Sital Prasad Ghatterji, for the opposite party.

JUDGMENT.

KNOX, J. This case is represented as an appeal under s. 195 of the
Code of Criminal Procedure from an order of the Sessions Judge of
Mainpuri granting sanction for a criminal prosecution under section 193
of the Indian Penal Code.

A preliminary objection has been urged to the effect that no appeal
lies from orders passed under s. 195 of the Criminal Procedure Code and
I have been referred to s. 401 in support of the contention. Section 404
provides in express terms that, except as provided by this Code, no appeal
shall lie from any order of a Criminal Court. No direct provision of the

' Criminal Revision No. 665 of 1892.
(1) 6 C, 675.

7S5



15 All. 62 INDIAN DECISIONS, NEW SERIES [Yol.

1892 Code has been pointed out to me as sanctioning an appeal from orders

Nov. 19. passed under s. 195. It has, however, been contended by Mr. Wallach,

who appears for the appellant, that the worda contained in s. 439 of the

KEVI- Gorio of Criminal Procedure do recognise the power of revoking a sanction

SIGNAL t62] given or granting a sanction when refused as one of the powers

OIRMINAL i nD - eren fc m a Court of appeal.

I have also been referred to the case of Guldb Singh v. Surat Ram

18 A. 61= and others (1), and it has been argued that this is an authority for the
12 A.W N. view that appeals lie from orders under s. 195 of the Code of Criminal
(1892) 242. Procedure. The case is not on all fours with the case before me. In
that case the Court was dealing with an application for a revision of an
order of a Magistrate of the first class refusing sanction, and all that is
expressly laid down in that ruling of this Court is that inasmuch as the
law provided for an appeal against an orner refusing sanction, no appli-
cation for revision would lie to this Court unless the prior remedy provided
by the Code bad been exhausted.

So far, moreover, as my experience goes, and Counsel has not been
able to show me to the contrary, the usual practice of this Court have been
to entertain application of this kind as applications for revision. I do
not find either in s. 439 or s. 195 any express provision made for an ap-
peal. Section 195 only contains the word " appeal " as a convenient
mode of designating a particular Court which the law directs shall deal
with the revoking or granting of sanctions under s. 195, and as regards
8. 439 I am of opinion that the word Court there used is again used to
designate a particular Court and cannot be construed in face of the precise
wording of s. 404 into a word granting an appeal. Had the Legislature
intended an appeal to lie, the natural place for so enacting would have
been in Chapter XXXI of the Code. For these reasons I hold that the
preliminary objection must prevail and that no appeal lies.

However, under the circumstances, and exercising my powers as a
Court of revision, I direct the record to be laid before me with a view of
satisfying myself howfar any contention can be urged of the correctness
of the order passed.

Upon this case coming up in revision, Mr. Chatterji who appears for
Tota Bam, called the attention 6f the Court to the fact that M^hdi
Hasan had on a previous occasion applied to have the order [63] for
sanction in this case reviewed and that application was rejected. Under
these circumstances I bold that as regards Mehdi Hassan I cannot enter-
tain this application.

Application rejected.



(I) 4 A.W.N. (1884) 993.

756



YII]



RAM RAJ TEWARI V. GIRNANDAN BHAGAT 16 All. 64



13. A. 63 = 12 A.W.N (1892) 210.

APPELLATE CIVIL.
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Aikman.



EAM RAJ TEW ART (Plaintiff) v. GIRNANDAN BHAGAT AND OTHERS
(Defendants)* [30ch November, 1892.]

Act VII of 1970, s. 7, para. 5 -Act VII of 1887, s. 8 Coii't-fee Jurisdiction Su\t to
eject a tenant at fixed ra'es Valuation of suit.

A suit to eject a tenant at fixed rates is a suit fot the possession of land within
the meaning of paragraph 5, s, 7 of the Court-fees Act, 1870, and the valuation
of such suit for the purposes of Court-fees and of jurisdiction is the value of
the subject-matter of the suit, that is to say, of the tenant-right, not of the land
itself nor of merely one year' rent.

IN. P., 1 L.B.R. 303 (307) ; R., 15 A. 363 (365) ; 27 P.R. 1910 = 30 P-L.R. 1910 = 5 Ind.
Cas. 910; U.B.R. (1902 1903), Vol. II. Court-fees, p.l ; D., 32 A. 19 (23) =6
A.L.J. 905 >9iO) = 3 Ind. Gas. 562 = 6 M L.T. 311.]

THE facts of this case sufficiently appear from the judgment of
the Court.

Munsbi Jwala Prasad, for the appellant.
Mr. Abdul Majid, for the respondents.

JUDGMENT.

EDGE, O.J. and AIKMAN.J. In the suit out of which this appeal
has arisen the plaintiff sued to eject certain tenants at fixed rates on
account of acts alledged to have been done by them inconsistent wich the
purposes for which tbe land was let. The suit was one which came
under cl. (6) of s. 93 of Act No. XII of 1881. The case went in
appeal to the Court of the District Judge, and a question arose before him
as to whether the case was appealable under s. 189 of Act No. XII of 1881.
The annual rent was Bs. 81-5 0, and tbe plaintiff, who was the appellant in
the Court of the District Judge, had valued his suit for the purposes of
the Court- fee at Es. 81-5-0. The learned District Judge considered that
the valuation put by the plaintiff upon his suit was the valuation which
[64] determined the right of appeal in the case and dismissed the appeal,
holding that it did not lie. So far as this case is concerned, s. 189 of Act
No. XII of 1881 gave a right of appeal if the value of the subject-matter
exceeded Es. 100. Having regard to d. 8 of Act No. VII of 1887, we
have to see whether the suit was one of those referred to in paragraphs 5,
6, 9 or 10, cl. (d) of the Court-fees Act, 1870. As the Court-fees Act,
1870, was undoubtedly enacted with the object of specifying tbe Court-fees
to be paid in every class of suit, we must, if we can, so read it as to make it
include the suit in question here. This suit undoubtedly was one for
the possession of land. It was a suit by a landlord to eject his tenants
and to recover from them that possession of the land which they were
entitled to as tenants at fixed rates. We have carefully gone through the
Court-fees Act of 1870, and we are unable Co find, either in the body of the
Act or in the schedules, any povision which would apply to a suit of this
kind, unless it is to be found in tbe opening portions of paragraph
5 of s. 7. Paragraph 5 begins thus: "In suits for the possession of



1892

NOV. 30.

APPEL-
LATE

CIVIL.

15 A. 63 =
12 A.W.N.
(1892) 210,



Second Appeal No. 9U of 1890, from a decree of H.W. Reynolds. Esq., District
Judge of Ghaz'pur, dated the 16th June 1890, confirming a decree of Maulvi Muham-
mad Wasi, Assistant Collector of Ballia, dated the 16sh September, 1889.

757



Id All. 65



INDIAN DECISIONS, NEW SERIES



[Yol.



1892 land, bouses and gardens according to the value of the subject-matter."

Kov. 30. What follows thase words applies to cases of which this is not one,

and provides for the ascertainment of value by meana which would

APPEL- not be applicable here. We are accordingly of opinion that we must

LATE apply the words which we have just quoted from paragraph 5 to this

GlYIIi case in preference to holding that the Court-fees Act makes no provisions

' for Court-fees in suits of this kind. The result is that in suits under

15 A. 68= s. 93, ol. (b), the value for the purposes of Court-fees and the value for
12 A.W.N. purposes of jurisdiction have to be computed in the same way, namely,
(1892) 240. by ascertaining the value of the subject 'matter. The subject-matter here
cannot be treated as the land itself, as the landlord, plaintiff, has,
through his tenants, proprietary possession, and what is really sought is
to free the land from the possession of the tenants holding as tenants at
fixed rates, that is, to get rid of the tenants and their tenant-rights
and that is a relief the value of which is easily ascertainable. The ques-
tion of jurisdiction was not decided on these lines. We set aside
the decree of the Court below, and remand this case under s. 562 of
the Code of Civil Procedure for the appeal to be [65] disposed of according
to law. It may of course be found that the value of what we may call
the tenant-right, in this case does not exceed Ks. 100, in which case the
appeal to the Court below would not lie. That is a matter which must be
gone into. The costs of this appeal will abide the result.

Cause remanded.



13 A, 63 = 13 A. W N. 1893) 29.
APPELLATE CIVIL.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Burkitt
and Mr. Justice Aikman.



JAINTI PBASAD (Plaintiff) v. BACHU SINGH AND OTHERS (Defendants) *

[10th January, 1893.]

Civil Procedure Code, s. 544ct No. VII of 1870, s. IS-Act No. XV of 1877, s. 4 Plaint
insuffl -iently stamped Power cf Cowt to grant time for making good the deficiency
Limitation,

When a Court fixes a time under ol. (a) or ol. (6) of e. 54 of the Code of Civil
Procedure it must be a time within limitation. Section 54 does not give a Court
any power to extend the ordinarily prescribed period of limitation for suits.
Moti Saku v. Chhatri Das (1) and Yakut-un-nissa Bibee v. Kishoree Mohun
li H (2) discussed.

[N.F., 27 B. 330 = 5 Bom.L R. 198; L.B.R. (1893-1900) 33; 74 P.R. 1903 = 173 P.L.R.
1903; 123 P. R. 1907 = 82 P.W.R. 1907 = 3 M L.T. 63; F., 23 A. 423 (426) ; 24
A. 218 (220) ; R., 17 A. 288 (29i) ; 18 A. 206 (210) ; 20 A. 11 (13) ; 20 M. 319
(323i ; 32 M. 305 = 1 Ind. Gas. 507=4 Ind. Gas. 503 (504) =6 M.L.T. 129 (132);
24 A.W. N. 133; D., 27 A. 197 (199) = 1 A.L.J. 641 ; 29 A. 749 (765) = 4 A.L.J.
636 = A.W.N. 1907, 253 ; 24 M. b31 (334) ; 25 M. 380.]

[N B. This is referred to as Second Appeal No. 1152 of 1892 in 13 A.W.N.
(1893) 29. Ed.]

THIS case was referred along with others to a Bench of three Judges
as to the question of limitation raised therein and with referrence to the

* Second Appeal No. 1152 of 1891 from a decree of Miulvi Muhammad Anwar
Huaain, Subordinate Judge of Farakhabad, dated the 26th June 1891, confirming a
decree of Maulvi Hamid Hasan, Munaif of Chibramau, dated the 16th March 1891.

(1) 19 0. 780. (2) 19 C. 747.

768



YII] JAINTI PBASAD V. BAOHU SINGH 15 All. 67

effect, if any, of the bill which subsequently became Act No. VI of 1892. 1898

The facts of the case are fully stated in the judgment of the Court. JAN. 10.

Munshi Kashi Prasad, for the appellant.

Mr. Niblett, for the respondent. APPEL-



JUDGMENT.

CIVIL.

EDGE, C. J., BURKITT and AIRMAN, JJ. The question before us in -

M M W OU

this appeal is one of some difficulty. It had come before the Court in the

case of Dharam Narain Lai v. Jagmohan Pande (1), but had nob been 13 *.

actually decided. The question shortly is whether a Court, acting under ^ 92 ) 29>

s. 54 of the Code of Civil Procedure in a case falling under cl. (a) or cl(6)

of that section, has power to extend the period of limitation within which

a suit may be brought ; that is to say, whether a Court has power under the

Code of Civil Pro- [66] cedure to give a plaintiff time beyond limitation

within which to correct the valuation of his relief or to supply requisite

stamped paper where the plaint was written on paper insufficiently stamp-

ed. The question before us has no reference to the duties imposed upon a

Court by s. 10 or 11 of the Court Fees Act. The facts of this case, so far as

it is necessary to refer to them, are shortly as follows : -The suit was for

possession of sir lauds which were alleged to have been purchased by the

predecessor-in-title of the plaintiff on the 20oh of December 1878. That

alleged predecessor was said to have sold his interest to the plaintiff on the

21st of April 1890. The plaintiff presented his plaint in the Oourt of

the Munsif of Chibramau at a quarter to 4 o'clock on the afternoon

of the 20&h of December 1890, i.e., at a quarter to 4 o'clock on the

365t,h day of the twelfth year of limitation. The plaintiff presented

his plaint claiming possession of land held by the defendants. Upon

the presentation of the plaint the Munsarim, to whom in that Court

plaints could be presented, made the following report: "In the suit

the time expires to-day. The suit has been filed just now at 3-45 p.m.

A Court fees stamp of the value of as. 12 is affixed. As the claim

relates to sir land forming part of a mahal and fives times (the revenue)

of it is Eg. 45-12-2, there is a deficiency of Rg. 3 under cl, (5.) s. 7

of the Court Fees Act, 1870. Unless a sufficient stamp is affixed the

suit cannot be registered. Tbe account of Court fees has been closed and

the time for the Court to rise has approached. I submit this for your

information. Dated the 20t,h of December 1890." Upon that the Muosif

made the following order : ' 'This petition carae on with the reporo of the

Munsarim. Reckoning from the date of the cause cf action, the period

it appears, extends up to this day. The pleader was asked to make up the

deficiency in the Court fee, but he said that stamps could not be had now ;

that the 21st of December was a Suuday ; and that he would make up the

deficiency in two days. Ordered that this be returned to the pleader, that

he may present it with a petition within three days after making

up the deficiency in the Court fee, and then it will be registered."

From the report and the order which we have quoted it is obvious

that this was not a case in which the Munsif could have made an

[67] order under the second paragraph of s. 28 of the Court Fees Act.

It would appear that this case is a case in which, if the plaintiff's pleader's

statement was true, it was impossible for him, as he had not procured a

proper stamp in time, to satisfy at a quarter to 4 o'clock on that afternoon

the requirements of the Court Fees Act. The presentation of the plaint



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 111 of 155)