RAM MURTI AND ORS. Vs. BANK OF PATIALA
HIGH COURT OF PUNJAB AND HARYANA
Ram Murti And Ors.
BANK OF PATIALA
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Teja Singh, J. -
(1.) AN appeal was preferred to this Court on 10 -7 -2005 (25 -10 -1948) from the order of the District Judge, Patiala, dated 4 -4 -2005 (19 -7 -1948) whereby he had rejected the plaint because proper court -fees had not been paid. On 3 -3 -1949 when the case came before a Bench an objection was taken that the memorandum of appeal did not bear proper court -fees. This objection was accepted by the Bench and the appeal was dismissed. The Appellants have now made a petition in which two prayers are made: (i) that we should review our previous order dismissing the appeal, and (ii) that the Appellants be given a certificate for further appeal to the Judicial Committee. It may here be mentioned that at the time the appeal was decided there was a Judicial Committee of the Ijlas -i -Khas to which appeals from the decrees of the High Court could be preferred by -special leave.
(2.) TO start with it was urged before us that since a prayer was made on behalf of the Appellants, before the appeal was dismissed, that opportunity should be allowed to make up the deficiency in court -fees, the Bench wrongly refused to consider that request. This aspect of the matter was discussed by me and Kartar Singh J. who then constituted the Bench with me in our order dated 6 -7 -1949. We showed therein that the contention that any request had been made to us for permission to put in deficient court -fees before we pronounced the order dismissing the appeal was wrong and that the affidavit of Lala Kishori Lal Advocate was incorrect. The following observations made by us in that order regarding what actually happened may be reproduced here:
What happened was that when the appeal came up before us I raised the question of court -fees. The Appellant's counsel apparently was not prepared on the point but all the same he argued the matter. Not being satisfied with his arguments we ourselves sent for the relevant authorities and after we had heard the counsel and after we were satisfied that proper court -fees had not been paid on the memorandum of appeal, I started dictating the judgment in open Court. Lala Kishori Lal never urged then that he had something more to say, nor did he pray that time be granted to him to look up law.
The entire judgment was dictated by me in open Court in the presence of the parties' counsel and after I had dictated the sentence "That the result in our opinion is that the appeal is not properly stamped and must be dismissed," it was suggested to me by my learned colleague that a note might also be made that the Appellant's counsel did not even request that time should be given to him to make up the deficiency and on this the following sentence, which is the concluding sentence of my order, was added:
It may here be pointed out that the Appellants' counsel did not even request that time should be given to him to make up the deficiency in court -fees.
It was urged before us that the Appellants' counsel were all along under the impression that opportunity would be allowed to them to address further arguments on the question of court -fees. This question was also dealt with in my order dated 6 -7 -1949. All that need be mentioned here is that since I dealt with the whole matter and also discussed the law on the point in my order such an impression on the part of the counsel could not exist but even if it did the counsel must thank themselves for it. As I pointed out in my above mentioned order a request for making up the deficiency in court -fees was made to us by Lala Kishori Lal, but it was after I had dictated the whole order, including the last sentence, which was added at the suggestion of my learned colleague.
(3.) THEN it was urged before us that the refusal of the Bench to allow time for making up the deficiency in court -fees was against the provisions of law. Learned Counsel referred us to Order 7, Rule 11, Section 149, Code of Civil Procedure and Section 28, Court -fees Act and he contended that as it is laid down in Section 107, Code of Civil Procedure that an appellate Court has the same powers and must perform the same duties as are conferred and imposed by the Code upon the Court of original jurisdiction, we were bound to allow the Appellant time to make up the deficiency in court -fees and our order dismissing the appeal was erroneous. In the first place, I wish to point out that even if the order of the Bench was vitiated by a mistake on a question of law, this cannot be a ground for setting it aside on review. The grounds on which a review can be allowed are clearly mentioned in Clause (c) of Sub -rule (1) of Order 47, Rule 1, Code of Civil Procedure and it is now well -settled that it is not competent for a Court to travel beyond them. These grounds are: (i) the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the party or could not be produced by him at the time the decree was passed or order made; (a) some mistake or error apparent on the face of the record; and (iii) any other sufficient cause. Ground No. (i) has no application whatsoever. As regards No. (ii) even if it be conceded for a moment that we did commit a mistake or error of law, it cannot be said that that mistake was apparent on record, because the Appellants' counsel had to concede that there was a conflict of opinion on the point whether Order 7, Rule 11, Code of Civil Procedure can govern the case of a memorandum of appeal and the Court is, therefore bound to grant the Appellant time to make up the deficiency in court -fees before rejecting the memorandum. Stress was laid by the counsel upon the third ground, i.e. sufficient reason, and he argued that taking into consideration the value of the property involved in the litigation as well as the fact that case of the Appellants was a minor it was a fit case in which we should exercise the power of review. This contention must, however, be rejected in view of the pronouncement of their Lordships of the Privy Council in Chhajju Ram v. Neki, A.I.R. 1922 P.C. 112 :, 3 Lah. 127 where they held that "any other sufficient cause" means reason sufficient on grounds at least analogous to those specified immediately previously. In that case the Punjab Chief Court had granted a review on the ground that the judgment had proceeded on an incorrect exposition of the law. Their Lord -ships of the Privy Council held that this was not a ground analogous to those mentioned in the earlier part of Clause (c) of Sub -rule (1) of Order 47, Rule 1, and consequently it could not be, a sufficient reason for granting the review. This view was confirmed in Bishweshar Partap Sahai v. Parath Nath : A.I.R. 1934 P.C. 213 : 56 All. 634. Their Lordships observed that Rule 1, Order 47 must be read as in itself definitive of the limits within which review is permitted and the words "any other sufficient reason" must be taken as meaning "a reason sufficient on grounds at least analogous to those specified immediately previously". The fact if a request for permission to make up the deficiency in court -fees had been made before us before we had disposed of the appeal and the Bench might have taken a lenient view and granted time is altogether immaterial, for the simple reason that when the Bench dismissed the appeal because the memorandum of appeal was not properly stamped, a valuable right accrued to the other side and that right cannot now be interfered with or taken away except in due process of law. It is correct that a remedy by way of review was open to the Appellants and they have availed of it, but the review, as observed above could be allowed only on the grounds mentioned in Order 47, Rule 1, and when no such grounds are shown to exist, we are entirely helpless in the matter.;
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