M. Pattabhirama Mudaliar vs A. Krishnadevi and others

Venkataraman, J.—The facts giving rise to this revision petition are somewhat of rare occurrence. One Ayyasami filed a plaint in the Court

of the Subordinate Judge of Chingleput, through an advocate on 2nd December, 1969. Only a portion of the court-fee was affixed on the plaint.

Ayyasami died on 17th December, 1969. The advocate, however, affixed the deficit court fee of Rs. 662.50 on 22nd December, 1969 without

any vakalat from the heirs of the said Ayyasami. The plaint was returned on 23rd December, 1969 for furnishing a neat copy of the plaint. The

advocate did so and represented the plaint on 16th January, 1970. The suit was numbered on 5th February, 1970. On 17th March, 1970 a

petition was filed by the legal representatives of Ayyasami to bring themselves on record and they gave vakalat to the same advocate. On 15th

July, 1974, when the suit came on for trial, the first defendant filed an application (I.A. No. 528 of 1974) under Order VII rule II and S. 151 of

the C.P.C., praying that the suit might be dismissed on the facts stated above. The contention of the first defendant was that whatever the advocate

did between 17th December, 1969 and 17th March, 1970 was without authority and that therefore the numbering of the suit on 5th February,

1970 was not valid.

The learned Subordinate Judge overruled this contention and dismissed I.A. No. 528 of 1974, Against that order the present revision petition

has been filed by the first defendant

Mr. T.R. Srinivasa Iyer, learned counsel for the petitioner, urges before me that the vakalat of the advocate ceased on 17th December, 1969,

that therefore whatever he did between 17th December, 1969 and 17th March, 1970 was without authority and was illegal, and that therefore

there was no valid affixture of the court fee stamp and no valid re-presentation of the plaint, in order to justify the court numbering the plaint on 5th

February, 1971. In support of this contention he cites the decision of Rajamannar, C.J., and Chandra Reddy, J., in Venkataseshamma v.

Ranganayakamma (1950) 1 M.L.J. 79 : 63 L.W. 70, (cited before the learned Subordinate Judge also) and the decision of the Allahabad High

Court in Muhammad Ali Khan v. Jos Ram ILR 36 (All 46).

I am afraid that the contention of the learned Counsel for the petitioner has no real substance. I shall proceed on the footing that the advocate''s

authority to act on behalf of Ayyasami ceased on 17th December, 1969, that he had no authority to act for the legal representatives till 17th

March, 1970 and that therefore he lacked the requisite authority under Order III of the CPC to do any act to be done by a party. But this does

not really affect the question substantially. The first act of the advocate was merely to affix the deficit court fee. He might have been entrusted with

the court fee even previously to the death of Ayyaswami and he did nothing wrong in affixing the court fee which had been paid to him by

Ayyaswami. It is unnecessary to enquire whether he had received the full court fee even in the first instance when the plaint was filed or later,

before 17th December, 1969. It is sufficient to note that, when Ayyaswam had entrusted him with the full court fee, the advocate was merely

carrying out his obligation in affixing the court fee and his affixture of the court fee was only in pursuance of the antecedent authority given to him by

Ayyasami.

The next act which was done by him was to furnish a neat copy of the plaint. Even assuming that this was not valid, it would not really affect the

original presentation of the plaint. The important point to note is that the application to implead the legal representatives was filed in time, and, even

ignoring these intermediate acts the court could view it as though the plaint was represented on 17th March 1970. That would not, however,

matter at all for the purpose of limitation, because the plaint was validly presented on 2nd December 1969 and that is all that matters for the put

pose of limitation in filing the suit and as we have seen the application to implead the legal representatives was filed within time. Hence the

necessary judicial acts were regularly performed.

The decision in Venkataseshamma v. Ranganayakamma (1950) 1 M.L.J. 79 : 63 L.W. 70 has nothing to do with the facts of the present case.

These the appeal memo on which a court fee of Rs. 1,342-7-0 had to be paid, was presented only with a small court fee. It was returned on 1st

May 1947, for payment of the deficit court fee. It was represented nearly two years later, on 3rd January 1949, with an application to excuse the

delay in payment of the deficit court see. A learned Judge of this court excused the delay, without notice to the other side. Later, when the appeal

came up for hearing, the other side filed a petition before the Bench which heard the appeal stating that the delay should not have been excused

without notice to the other side. The Bench pointed out that when there had been such an extraordinary delay, notice should have gone to the other

side and that, if the delay was excused without notice it was always implied that the other side could take up the point again. Under the

circumstances of the case the learned Judge observed that they were not prepared to cancel the order of the learned single Judge but put the

appellant on stiff terms and directed him to pay the costs of the appeal. That decision does not at all affect the view which I have taken in this case.

In Mohamed Ali Khan v. Jas Ram ILR 36 All. 46 the appeal was presented by a Vakil, Munshi Abdul Salam Khan, and it was heard. But is

was discovered later that in the body of the vakalat the vakil''s name was not found It was contended that there was no valid presentation of the

appeal and that the subsequent proceedings were void. This contention was accepted. The present case is different from that case, because here

the plaint was validly presented on 2nd December 1969. In the result the civil revision petition is dismissed.