VALAMBAL AMMAL Vs. VYTHILINGA MUDALIAR
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(1.) This is a suit for the cancellation of a sale deed for Rs. 2,500 executed by the plaintiff. In this Court, on second appeal, a stamp duty of Rs. 150 was paid, On behalf of the respondent the objection was raised that this Court could not entertain the appeal, because in the Court of First Instance and in the lower Appellate Court a stamp duty of Rs. 10 only had been paid. As regards the appeal to the lower Appellate Court the effect of Section 582-A of the Code of Civil Procedure is to enable a defective memorandum of appeal to be retrospectively validated if the insufficiency of the stamp was caused by mistake on the part of the appellant. This section appears to have been introduced for the purpose of meeting a decision of a Full Bench of the Allahabad High Court--a decision which was dissented from by this Court in Chennappa v. Raghunatha I.L.R. 15 Mad. 29 and Patcha Saheb V/s. Sub-Collector of North Arcot I.L.R. 15 Mad. 78 to the affect that if a memorandum of appeal is not, when tendered, properly stamped, it is not at that time a memorandum of appeal, and the subsequent affixing of the proper stamp cannot have a retrospective effect so as to validate the original presentation unless it has been done by order of the Court, and the Court cannot make any such order unless the memorandum has been received, filed or used through mistake or inadvertence on the part of the Court or its officers Balkaran Rai V/s. Gobind Nath Tiwari I.L.R. 12 All. 123.
(2.) This section makes it clear that, at any rate as regards memoranda of appeals and applications for review when the document its insufficiently stamped by reason of the mistake of the party, the defect may be afterwards made good and the document will be as valid as if it had been properly stamped in the first instance. The argument on behalf of the respondent was that inasmuch as the legislature in Section 582-A had dealt expressly with insufficiently stamped memoranda of appeals without reference to insufficiently stamped plaints, the inference was that a defective plaint could not be subsequently validated so as to avoid the operation of the law of limitation. We do not think that such an inference ought to be drawn. The Allahabad decision only had reference to a defective memorandum of appeal, and Section 582-A was apparently intended to meet this particular decision.
(3.) As regards the plaint, the argument on behalf of the defendant was that the plaint not having been properly stamped the suit must be regarded as not having been instituted within the prescribed period. and that any order made under Section 28 of the Court Fees Act would not operate retrospectively since that section must be read subject to the express provisions of Section 4 of the Limitation Act. It was contended that inasmuch as the plaint was not stamped in accordance with the requirements of Section 6 of the Court Fees Act, there had been no plaint at all, and that illustration (a) to Section 4 of the Limitation Act shows that this Court has no alternative but to dismiss the suit as being now barred by limitation.;
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