ABDUL MAJID MRIDHA Vs. AMINA KHATUN D/O ABBAS MRIDHA

JUDGEMENT

(1.) In this case the learned District Judge of Faridpur has dismissed an appeal for non- prosecution on the ground that the appellant failed to pay the additional court-fee on his memorandum of appeal which has been demanded of him. The appeal arose out of a suit by a Mahomedan wife against her husband in which she asked for a divorce. At the hearing the defendant, though previously served with summons, failed to appear. One witness was thereupon examined on behalf of the plaintiff, and on this evidence, the learned Munsif holding the claim proved made an ex parte decree on 25 November 1937 declaring the marriage dissolved. There was an application under Order 9, Rule 13, Civil P.C, for setting aside the decree, which ultimately failed. The defendant had also taken an appeal to the District Judge, and it is against the dismissal of this appeal on the ground stated that the present appeal is directed.

(2.) It appears that the plaintiff had paid a sum of Rs. 15 as court-fee on her Plaint, evidently treating the suit as one for a declaration pure and simple. The defendant paid a similar court- fee on his memorandum of appeal in the lower appellate Court. Having regard to the averments in the Plaint, the learned District Judge, however, took the view that the suit came within the category of a suit for a declaration where consequential relief was prayed: in other words, that it came under Section 7, para, (iv), Clause (c), Court-fees Act, so that an ad valorem court-fee was payable both on the Plaint and on the memorandum of appeal. He calculated the amount due on the sum of Rs. 1100 at which the plaintiff had valued her suit for the purposes of jurisdiction. On 16 December 1938 the learned Judge accordingly made order on either party to pay the deficit court-fee on this basis. The plaintiff-respondent duly paid the amount, but the defendant-appellant failed to do so within the time allowed, and thereupon, on 24 January 1939 the Court made the order dismissing the appeal with costs for non-prosecution. A decree was afterwards drawn up in these terms, and the present appeal has been preferred against this decision as an appeal from appellate decree. On behalf of the respondent, Mr. Chakravarty has raised a preliminary objection to the competency of the appeal. His contention is that the dismissal of the appeal by the learned District Judge amounted to a rejection of the memorandum of appeal, and as such, did not come within the definition of a decree under Section 2, Sub-section (2), Civil P.C, and that in any case, the dismissal was one for default, and this expressly excluded from the definition under Clause (b) of the said Sub-section.

(3.) In support of his argument, Mr. Chakravarty relies on two cases, Jnanadasundari Shaha v. Madhab Chandra and Charusila Dasi V/s. Abhilas Bauri ( 36) 23 A.I.R. 1936 Cal. 804. These cases lend some support to his view, but in my opinion, they do not carry him all the way, and it is also doubtful how far they may be regarded as decisions on the particular point in controversy. In the first of these cases, the Court below had made an order rejecting a memorandum of appeal for non-payment of deficit court-fee. Thereafter on the appellant's application, the time for payment was extended and on the court-fee being paid within the extended time, the Court ordered the appeal to be registered. The respondent appeared and objected that the last order was without jurisdiction, but the objection was overruled. Against this decision the respondent moved this Court, and. it was argued on his behalf that by virtue of Order 7, Rule 11, read with Section 107, Sub-section (2), Civil P.C., the order rejecting the memorandum of appeal was a decree, and that as it had not been set aside by appeal or review, it had become final. The learned Judges negatived this contention, and it is on the observations which Suhrawardy J. made in this connexion that Mr. Chakravarty relies: Section 107(2) invests an appellate Court with the same powers as are conferred on a Court of original jurisdiction. It does not purport to give the order passed by an appellate Court the same effect as an order passed by an original Court of a like nature. Section 2 expressly says that decree shall be deemed to include the rejection of a Plaint. If it was the intention of the Legislature to include within the definition of decree an order rejecting a memorandum of appeal, it would have expressly said so.