SARJUG PRASAD SAHU Vs. SURENDRAPAT TEWARI

JUDGEMENT

(1.) In the litigation out of which this second appeal has arisen, judgment was delivered against the plaintiffs on 23 August 1935. The decree was signed on 31 August. The appellants applied for copies of judgment and decree and obtained the same on 5 September. The Civil Courts were closed from 27th September to 30 October on account of the annual vacation. On the 31 day, on which the Courts re-opened, the appellants presented a memorandum of appeal which the District Judge directed to be registered. The memorandum, however, was insufficiently stamped.

(2.) It bore a stamp of Rs. 1-8-0 instead of stamps worth Rs. 300. At the time of presenting the plaint, the appellants filed a petition stating that they had been unable to obtain the requisite court-fee stamps at the Treasury because the Treasury Officer said that it was not a Treasury-day. The next day the District Judge dismissed the appeal for insufficiency of court-fee. This appeal has therefore been preferred by the plaintiffs. The question that has been raised is whether the matter is governed by Order 7, Rule 11, Civil P.C., which empowers a Court to reject a plaint where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so.

(3.) On the interpretation of this clause which has been adopted in the High Courts of India, the Court must afford the plaintiff time to supply the deficiency in court- fees where the relief is properly valued. The question whether the rule applies to appeals has been debated in the Courts, and, so far as this Court is concerned, it was recently decided in Second Appeal No. 289 of Bahuria Ram Sawari Kuer v. Dulhin Motiraj Kuer reported in A.I.R (1939) Pat. 83 in which the decision of the Bombay High Court in Achut V/s. Nagappa was followed. The Bombay High Court held that the effect of Sub-section 2 of Section 107, Civil P.C., was to make the provisions of Order 7, Rule 11, applicable to appeals. That being the case, in the present instance the Court below having registered the appeal should have afforded the appellants an opportunity of making good the deficiency in the court- fee payable on the memorandum of appeal.