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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 112 of 155)
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(1) 11 A.W.N. (1891) 166.
759



15 All. 68



INDIAN DECISIONS, NEW SERIES



[Vol.



893

JAN. 10.

APPEL-
LATE
CIVIL.

is i. 65-

18 A.W.N.
(1893) 29,



had been delayed until the office from which the stamp could have been
obtained had been closed for the day, The plaintiff had valued the sir
lands at one year's rental, a valuation quite preposterous and one which
could not have been accepted, and which the plaintiff and his advisers
must have known would not be accepted, by any Court ; and on that
valuation he chose, almost at the last moment of the Court's sitting of,
the last day of the 12 years' limitation, to present his plaint in the Court.
The deficiency was made good within the time mentioned by the Munsif,
but after the expiration of the 12 years' limitation, and the suit, which
had been instituted, so far as a suit on an insufficiently stamped plaint
can be said to be instituted under -s. 48, was registered under s. 58
of the Code of Civil Procedure as having been admitted. It is to be kept
in mind in considering this case and all similar cases where the question
of limitation arises as to a suit or as to an appeal that there is a difference
between the presentation of the plaint or memorandum of appeal and the
admission of the suit or appeal. That distinction is recognised by ss. 58
and 59 with regard to suits and by s. 518 in the case of appeals. Again,
another matter has to be borne in mind, and that is the distinction in
result between the rejection of a plaint under s. 54 of the Code of Civil
Procedure and the dismissal of a suit on the ground of limitation in accord-
ance with s. 4 of the Indian Limitation Act, 1887. The dismissal of a suit
on the ground of limitation would be a final bar, unless removed on appeal,
to the presentation of any fresh suit on the same cause of action. The rejec-
tion of a plaint under s. 54 of the Code of Civil Procedure would not of its
own force preclude the plaintiff from presenting a fresh plaint in respect of
the same cause of action. That appears from s. 56 of the Code of Civil
Procedure. Ordinarily the procedure provided by s. 54 of the Code of
Civil Procedure would be applied before a plaint was admitted and the
suit regis-[68] tered, but that s. 54 is not restricted to a proceeding prior
to admission and registration appears from cl. (d) of s. 54 read in conjunc-
tion with cl. (6) of s. 53. In Kishote Singh v. Sobdal Singh and another(l),
it was held by this Court that s. 54 might be auulied at any stage of a
suit. In the case of Kishore Singh v. Sabdal Singh and another no ques-
tion of limitation was considered by the Court. When a plaint has been
returned under s. 53, except probably on the ground of its being wrongly
framed by reason of non-joinder of parties necessitating the joinder of a
person not previously a party to the suit, it is difficult to see how any rule
of limitation would be violated, as by s. 53 it is " provided that a plaint
cannot be altered so as to convert a suit of one character into a
suit of another and different character." S. 22 of the Indian Limi-
tation Act, 1877, provides for the case of a person being added as a tarty
after the institution of the suit. A casual reading of cl. (c) of s. 54 with
s. 56 might lead to the conclusion that ss. 54 and 56 taken together were
in conflict with s. 4 of the Indian L'mitation Act, 1877. There is however
no such conflict ; cl. (c) of s. 54 undoubtedly would apply to a case in which
it appeared *' from the statement in the plaint " that the suit was barred
by limitation, a statement which might be erroneous, but it would not
apply to a case in which after the admission of the suit it was judicially
decided on evidence as to facts and dates that the suit was barred by limi-
tation, in which latter case it would ba the duty of the Court under s. 4 of
the Indian Limitation Act, 1877, to dismiss the suit and not merely to
reject it. A judicial decision on evidence that a suit was barred by

(1) 12 A. 553-9 A.W.N. (1889), 185.
760



YII] JAINTI PRASAD V. BACHD SINGH 15 All. 70

limitation would operate under s. 13 of the Coda of Civil Procedure, as a 1893
bar to a fresh suit for the same cause of action. JAN. 10.

Section 54 of the Code of Civil Procedure is not expressly at variance
with any provision of the Indian Limitation Act, 1877, and we fail to see APPEL-
that ib is by implication from anything contained in it at variance with LATE
any provision of that Act. CIVIL

There is in the Limitation Act no power given to a Court to exercise

discretion as to extending the period of limitation except [69] such as is
contained in the second paragraph of s. 5, and that paragraph does not
relate to suits. The other sections of the Limitation Act which have the
effect of extending the ordinary periods of limitation for suits or appeals are
sections which provide in themselves for the extension of limitation, on
certain facts being proved, such, for instance, as the section relating to fraud,
that relating to minority, that relating to a plaintiff who has bona fide prose-
cuted his remedy in a Court which had not jurisdiction and that relating to
a defendant who has been absent from the jurisdiction of the Indian Courts.
Consequently, except under s. 5, a Court is given by the very Act which
provides for limitation, no power to extend limitation with regard to eioher
suits, appeals or applications. We are, however, asked to read s. 54 of the
Code of Civil Procedure as giving a Court a power to extend limitation which
that Court would not have under the Indian Limitation Act. Ib is one of the
primary rules of construction to be applied to statutes that if statutes of
the Legislature can be read so as to reconcile them they are so to be read,
and they are not to be read as in conflict unless ib is manifest and apparent
that there is a conflict between them. Now if we were to construe s. 54
as giving a Court power to extend limitation we should be giving to
that section a construction at variance with the plain wording of H. 4 of
the Indian Limitation Act, 1877, and with the clear intention of the
Legislature as evidenced by the Indian Limitation Act, 1877, that a suit
should not be entertained unless it was instituted within the periods of
limitation prescribed by that Act. According to the explanation contain-
ed in s. 4 of the Indian Limitation Act, 1877, "a suit is instituted in
ordinary cases when the plaint is presented to the proper officer." It is
enacted by s. 48 of the Code of Civil Procedure that "every suit shall be
instituted by presenting a plaint to the Court or such officer as it appoints
in this behalf." It is enacted by s. 4 of the Indian Limitation Act, 1877,
that " subject to the provisions contained in ss. 5 to 25 (inclusive) every
suit instituted, appeal presented and application made after tbe period of
limitation prescribed therefor by the second schedule hereto annexed, shall
be dismissed, although limitation has not been set up as a defence." IS was
decided by this [70] Court in the case of Balkaran Rai v. Gobind Nath
Tiwan (1) that effect must be given to the Court Fees Act, aud particu-
larly to the prohibitive provisions of that Act contained in s. 28. A plaint
is a document within the meaning of the Court Fees Act and within the
meaning of s. 28, and as a suit can only be instituted by the presentation
of a plaint, the presentation of an insufficiently stamped document, which
if sufficiently stamped could be treated as a plaint, cannot be regarded in
law as the institution of a suit within tbe meaning of the exulanation to
s. 4 of the Indian Limitation Act, 1877, or .of s. 48 of the Code of Civil
Procedure. Section 28 of the Court Fees Act prohibits the Court from
regarding any document which ought to be stamped under that Act as of
any validity unless and until it is properly stamped. The result is that



A VII 96



(1) 12 A. 129.
761



15 All. 71 INDIAN DECISIONS, NEW SERIES [YoL

1893 on the 20th of December, 1890 there was no plaint before the Court which
JAN. 10. could be considered as of any validity as a plaint, and no plaint the

presentation of which could be considered as the institution of a suit.

APPEL- Section 4 of the Indian Limitation Act, 1877, where it says that " a suit

LATE in ordinary cases is instituted when the plaint is presented to the proper

ClVIL. officer," must, having regard to s. 28 of the Court Fees Act, be taken to

refer to a plaint which is sufficiently stamped according to the Court

15 A. 65 <= Fees Aefc. If we were to hold otherwise we should be holding that a

13 S.W.N. document to which the first paragraph of s. 28 of the Court Feas Act

(1893) 29. applied, and which was insufficiently stamped, and which was never

stamped under the second paragraph of that section, was, in a Court of

Justice which was bound to administer the Court Fees Acfc, valid as a

plaint when it was insufficiently stamped.

We have been pressed with two decisions on behalf of the plaintiff,
appellant here. One is that of the High Court at Calcutta in the case of
Moti Sahu v. Chhatri Das (1) in which it was held that in a case in
which a suit was presented on an insufficiently stamped plaint and the
deficiency was made good after limitation under an order which was
treated as having been made under s. 54 of the Code of Civil Procedure,
" the date of the institution of the suit [71] should be reckoned from the
date of the presentation of the plaint and not from that on which the
requisite Court fee was subsequently put in so as to make it admissible
as a plaint." The learned Judges in that case apparently conceived that
a Court acting under s. 54 of the Code of Civil Procedure would also be
acting under the second paragraph of s. 28 of the Court Fees Act. In the
case to which we are referring it appeared that on the presentation of the
plaint a report was made that it was on insufficiently stamped paper
and thereupon the Court ordered the plaintiff to pay the proper Court
fees within a time fixed by the Court. With the utmost deference to
the learned Judges who decided that case, it is difficult to conceive how
the Court could in that case have acted under the second paragraph of
8. 28 of the Court Fees Act. Before the plaint there was received, filed,
or used within the meaning of s. 23, the insufficiency of the stamp was
brought to the attention of the Court.

Further, with record to that case it is apparently in conflict in princi-
ple with another decision of the same High Court in Yakut- un-nissa
Bibee v. Kishoree Mohun Roy (2). The only apparent distinction between
the two cases is that in the case reuorfced at page 747, it was a memoran-
dum of appeal in the Court of a District Judge which was written upon
insufficiently stamped paper, whereas in the cape reported ab page 780, it
was a plaint in a Court of first instance subordinate to the High Court.
If the later decision is correct it appears to us that the prior decision must
have been incorrect, because having regard to s. 582 of the Code of Civil Pro-
cedure, which makes applicable to appeals the provisions of Chapter V
which contains s. 54, a Court of appeal would have the same powers and
would have to perform the same duties with regard to a memorandum of
appeal as a Court of first instance has to perform with regard to a plaint.
The other case with which we have been pressed is one relied upon by the
learned Judges in the case reported in I.L.R., 19 Calo., p. 780, and it is the
case of Skinner v. Orde (3). Those learned Judges rely upon the decision
[72] of their Lordships of the Privy Council in Skinner v. Orde as having
decided that the date of the institution of the suit in that case should be

(1) 19 C. 780. (2) 19 0. 747. (3) 6 I. A. 126 = 2 A. 241.

762



YII]



JAINTI PRASAD V. BACHU SINGH



15 All. 73



reckoned from the date of the presentation of the plaint (p. 783). The
decision of their Lordships in the case of Skinner v. Orde, so far as it baa
any bearing on this subject, was fully considered by this Court in Balka-
ran Bai v. Gobind Nath Tiwari (1). In the case of Skinner v. Orde the
doeument which was originally presented in the Court was an application
for leave to sue as a pauper. It was presented under Act VIII of
1859, and it was apparently, we infer, in compliance with s. 300 of
that Act which required that such application should contain all that it
was requisite for a plaint to contain and should be subscribed and verified
in the manner prescribed for the subscription and verification of plaints.
Thai; application before a sufficient stamp at the time it was presented, i.e.,
it bore the stamp required by law for an application for leave to sue as
a pauper, and the law required no further stamp if the application was
granted. Under s. 308 of Act VIII of 1859, if the application had been
granted, it would have been numbered and registered and by virtue of s. 308
would have been deemed to be the plaint in the suit. It was, at any rate, for
the purpose for which and at the time when it was presented, a sufficiently
stamped document. Their Lordships of the Privy Council held that
there was no provision in the Act meeting the particular case before
them, namely, a case in which the application of the petitioner who
applied to sue as a pauper was not granted under s. 308 and was not refused
under s. 310, but their Lordships were of opinion that the case approached
more nearly the state of things contemplated by s. 308 than that contem-
plated by s. 310 of Act VIII of 1859. The part of the judgment in Skinner
v. Orde which has been especially pressed upon us and which apparently was
in the contemplation of the High Court at Calcutta in the case of Moti Sahu
was as follows : ' The petition of plaint was placed upon the file and
numbered on the 19th of July 1873, and this is the plaint that is allowed
to go on. Although the analogy is not perfect, what has happened is not
[73] afc all unlike that which so commonly happens in practice in the
Indian Courts, that a wrong stamp is put upon the plaint originally,
and the proper stamp ig afterwards affixed. The plaint is not converted
into a plaint from that time, but remains with its original date on the file
of the Court and becomes free from the objection of an improper stamp
when the correct stamp has been placed upon it." Now, where the
insufficiency of the stamp is brought to the attention of the Court before
the plaint is admitted, the plaint is not brought upon the file unless a
lawful order made under s. 54 of the Code of Civil Procedure has
been complied with. No doubt cases do occur in which after the plaint
has been admitted and has been brought upon the tile, which we under-
stand to mean registered, it is discovered that the stamp is not sufficient
and that the plaint has been received and filad through inadvertence
or mistake on insufficiently stamped paper. In the latter case, upon
the plaint being properly stamped in accordance with an order of the
Court ander s. 28 of the Court-fees Act, the plaint would be as valid as
if it had been properly stamped in the first instance, and consequently
would remain with its original date on the file of the Court. That
probably was the class of case to which their Lordships of the Privy
Council were referring at page 250 of the Report in I.L.E., 2 Allahabad.
The case of Mussamai Begee Begum v. Syud Yusuf Ali (2) was also relied
on on behalf of the appellant here. Although all the proceedings in that
case took place after the coming into force of the Court Fees Act (Act No.



1893
JAN. 10.

APPEL-
LATE
CIVIL.

13 Al 68=a

13 * A.W.N.

(* 89 3) 2 &,



(1) 12 A. 129 at pp. 144-5.



(2) N.W.P.H.O.B. 1874, p. 139,



763



15 All. 74



INDIAN DECISIONS, NEW SERIES



[Vol.



1893 VII of 1870), the provisions of that Act were not taken into consideration
JAN. 10, by the learned Judges who decided that case, and consequently on this

point we do not consider it as an authority.

APPEL- There is a further reason why we cannot construe s. 54 of the Code

LATE of Civil Procedure as conferring on a Oourt a power to extent the ordinary
CIVIL Periods of limitation for the institution of suits. It is this. If that section

is to be construed as conferring such a power upon a Court, there does nofc

15 A. 65= appear to be any provision contained in the Code of Civil Procedure lirait-
13A.W.N. ing the power of a Court to extend [74] limitation, and a defendant
(1893) 29. would apparently be left without a remedy by appeal or otherwise against
an order under el. (a) or ol. (b) of s. 54 fixing a time which might have the
effect of extending limitation by one, ten or twenty years. Such an order
would not be a decree as decree is defined in s. 2 of the Code, nor would
it be an order appealable under s. 588. Clause (6) of s. 588 would not.
apply to such an order, as that clause relates only to orders returning
plaints for amendments (as to which see s. 53) and to orders returning
plaints to be presented to the proper Court (as to which see s. 57). If a
Court had power under s. 54 to extend limitation, its order having the
effect of extending limitation by one, ten or twenty years could not be
questioned under s. 591 as, there being nothing to limit the discretion
of the court in that event there would not be " any error, defect or
irregularity " within the meaning of that section in the order, nor would
a High Court have in such event any jurisdiction under s. 622 to interfere
with such an order. The power of a Court to act under the second para-
graph of s. 5 of the Indian Limitation Act, 1877, is, on the other hand,
limited by the appellant or applicant showing sufficient cause for not
having presented the appeal or having made the application for a review
of judgment within the prescribed period, and consequently a defendant
could in appeal by the plea that the appeal or application was barred by
limitation, raise the question as to whether sufficient cause had
bean shown to justify the Court's action under s. 5, We cannot
conceive that it was the intention of the legislature to give by s. 54
of the Code of Civil Procedure a power to a Court to extend the
period of limitation as against a defendant who would ordinarily have no
opportunity of being heard before an order under ol. (a) or ol. (b) of s. 54
fixing a time was made, and who would have no means of correcting by
appeal or in revision an unreasonable exercise of such a power, if it existed.
We have come to the conclusion that when a Court fixes a time
under ol. (a) or ol. (b) of s. 54 of the Code of Civil Procedure, it
must be a time within limitation, and that that section does not
give a Court any power to extend the ordinarily prescribed period of
75] limitation for suits. The plaintiff, appellant here has only himself to
thauk if he had any merits in this suit. He brought his suit at the last
moment of a twelve years' limitation. He inserted a ridiculous valuation
which no Court would accept.- He delayed presenting his plaint in the
Court of the Munsif until that Court was about to rise for the day and
until the office from which he could have obtained stamped paper bad
closed for the day. We bold that his suit was barred by limitation, and
we dismiss his appeal and affirm the decree of the Oourb below with costs.

Appeal dismissed.



764



YII] BADRI PRASAD V. MADAN LAL 15 All. 76

IS i. 75 (F B.) = 13 A.W.N. (1893) 52,

FULL BENCH. FEE, 8,

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Tyrrell, Mr. Justice -pm^
" Enox, Mr. Justice Blair, Mr. Justice Burkitt and Mr. Justice Aikman.

BENCH.



BADRI PRASAD AND ANOTHER (Plaintiffs] v. MADAN LAL AND .1 8 B ' *

OTHERS (Defendants)* [8th February, 1893.] 13 AWN

Eindu Law Joint Bi*du lankily Liability of sons during their father's lifetime /or (1893) 52.
his aritec-dtnt dibts.

Ht Id by the Fall Bench that the eons in a joint Hindu family were liable to be
sued along with their f-uher upon a mortgage bond giveu by the father ah ne
after the son? were born which purported to mortgage the joint family property,
the consideration having been, with a trifling exception, money advances ante-
cedently made by the mortgagee to him not as manager of the family or with the
authority of the sons or for family purposes', but not for purposes of immorality
or for purposes which if the father was dead would exonerate the sons from the
pious obligation of paying such debts of the father.

Held also that the decree in suoh a suit should be a decree for sale of the mort-
gaged property under s. 88 of Aot No. IV of 1882.

[H.F., 7 C.L.J. 195 ; P., 91 A. 238 (1440) I 21 A. 281 (284) ; 24 A. 459 (460) ', R., 16
A. 449 (457) ; 17 A. 537 (572) ; 19 A. 26 (32i ; 23 A. 206 (208) ; 28 A 504 = 3
A.L J, 274 = A.W.N. (1906) 117 I 29 A. 544=4 A.L.J. 424 = A W.N 1907, 159;
31 A. t76 (233) = 1 Ind. 0*8. 479 = 6 A.L J. 263 (F.B.) ; 34 C. 735 (747> = 5 0.
L.J. 569=11 C.W.N. 613 ; 8 A L J. 649 (6511 = 11 Ind. Gas. 9iO (931) ; 2i A.
W N. 57 ; 9 Ind. Gas. 406 (411) ; 1 O.C. 53 (61) ; 1 O.C. 112 (114) ; 53 P.R.
1901 ]

TflfS was a reference to the Full Bench made under an order of
Edge, C. J., and Tyrrell, J., dated the 7th of November 1892. The facts
of the case are fully stated in the judgment of Edge, G. J.

Mr. A. Strachey, Munshi Jwala Prasad, Munshi Bam Prasad, Munshi
Madho Prasad and Babu Bc.cha Ram, for the appellants.

[76] Babu Jogindro Nath Chaudhri, Pandit Baldeo Bam and Munshi
Jokhu Lai, for the respondents.

JUDGMENT.

EDGE, C.J. This second appeal which has been referred to a Full
Bench of all the Judges of the Court raises two very important questions
affecting Hindus. One is can the sons in a joint Hindu family be sued
along with their father upon a mortgage bond given by the father alone
after the sons were born which purported to mortgage the joint family
property, the consideration having been, with a trifling exception, money
advances antecedently made by the mortagee to him not aa manager of
the family or with the authority of the sons or for family purposes, but
net for purposes of immorality or for purposes which if the father was
dead would exonerate the sons from the pious obligation of paying suoh
debts of tbe father ?

The second question is if the suit is maintainable, what is the decree
which can be given to the representatives of the mortgagee, who are the
plaintiffs ?

The facts of tbe case, as admitted or found by the lower appellate
Court, so far as they are material, are as follows :

Second Appeal, No. 20 of 1890, from a decree of F.E. Elliot, Esq , District Judg
of Allahabad, dated the 7th December 1889. confirming a decree of Pandit Banaidbar,
Subordinate Judge of Allahabad, dated the 6th September 1889.

T65



5 All. 77 INDIAN DECISIONS, NEW SERIES [Yol.

1893 On the 30fch of December 1884, Madan Lai executed in favour of

FEB. 8. Lala Earn Kishan a bond by which he purported to mortgage the immove-

able properly in suit. The consideration for the bond was Rg. 1,457-3-0,

FULL due by Madan Lai to Lala Ram Kishan under a prior mortgage bond, of

BENCH, the 7th of October 1881, Rs. 181-4-0 interest due by Madan Lai to Lala

" Ram Kisban under the first mortgage bond and a then present advance of

o A. 75 j^ g j| g Q raac j e j.j v L a i a Ram Kishan to Madan Lai on the execution of

I Iv R \ *

w N * ne bond i SU ^' B V the mortgage in suit Madan Lai agreed to pay the
' '"!' principal moneys, amounting to Rs. 1,650, with interest thereon at the
' rate of one per centum per mensem, in a year from the 30t)h of
December 1884. The property included in the mortgage of the 30th
of December 1884 was the whole of the ancestral joint family property
of the family of Madan Lai. Lala Ram Kishan died prior to the
institution of the suit, which was brought upon the- mortgage bond of
the 30bh of December 1884, by his heirs against Madan Lai and bis
sons, Kunji Lai, Muni Lai, Kandhai Lai and Shankar Lai. In the plaint
[77J it was alleged that Madan Lai was the head and manager of the
family, and in his capacity of manager and for family purposes gave the
bond in suit to Lala Ram Kishan. The prayer of the plaint was in effect
for a decree under s. 88 of the Transfer of Property Act, 1882, and if the
nett proceeds of the sale of the mortgaged property should be found
insufficient to pay the amount due on the mortgage, the prayer in effect
further asked for a decree under s. 90 of that Act against the other
property of Madan Lai. It was not sought by the plaint to make the
sons of Madan Lai personally liable. Madan Lai did not defend the



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 112 of 155)