Decided on August 23,1900

JANKI KOER Respondents


Maclean, C J - (1.) To my mind this case is covered by the decision of the Judicial Committee of the Privy Council in the case of Skinner V/s. Orde (1879) I.L.R. 2 Cal. 389 I.A. 126. I dissent from the view taken by the Allahabad High Court in the case of Abbasi Begam V/s. Nanhi Begam (1896) I.L.R. 18 All. 206 and I do not think that the grounds upon which that Court distinguished the case before it from the case of Skinner V/s. Orde (1879) I.L.R. 2 Cal. 389 I.A. 126 are well founded. It is true that Skinner V/s. Orde (1879) I.L.R. 2 Cal. 389 I.A. 126 was decided under a Procedure Code other than the present, viz., under Act VIII of 1859, but the language of Section 310 of that Code is, in substance, the same as Section 413 of the present Code, except that the words "unless precluded by the rules for the limitation of suits" are excluded from Section 413 of the present Code. The exclusion of those words in the present Code does not appear to me to strengthen the argument upon which the Allahabad decision proceeded. Then, as regards the suggestion that the Privy Council decision rested to some extent upon some supposed practice in the Courts of India, all that the Judicial Committee said was, "although the analogy is not perfect, what has happened is not at 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 is afterwards affixed." I do not think that it can be fairly inferred from the language that the decision was based upon some supposed practice in the Indian Courts. On the contrary ample, and if I may say so respectfully, very forcible reasons for their decision are clearly stated in the judgment of the Judicial Committee.
(2.) In the view I take, it is unnecessary to deal with the other cases which have been cited.
(3.) The appeal must be allowed, and the case must go back to the Lower Appellate Court to try the other issues and questions in the case. The appellant must have the costs of this appeal and the costs of the appeal before Mr. Justice Wilkins, and of the appeal before the District Judge. Banerjee, J.;

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