Subedar Baman Ram vs Mt. Masti and Another

T. Ramabhadran, J.C.

This is an appeal by Subedar Baman Ram against the order of the learned Senior Subordinate Judge, Mandi, directing that a sum of Rs. 946.87nP. be recovered from him (the appellant), as court-fee under O. 33, Rule 10, Civil P.C.

A preliminary objection was taken by the learned counsel for the respondents to the effect that this appeal is time-barred. There is an office objection also to this effect, i.e., that the appeal is beyond time by nine days. To get over this difficulty, a petition u/s 14 of the Limitation Act (Civil Misc. Petn. No. 6 of 1959) has been filed by the appellant, wherein I have been requested to exclude the time spent in prosecuting the appeal in the Court of the District Judge, Mandi, while reckoning limitation. Although Section 14 does not in terms apply to an appeal, nevertheless, its principles would apply by analogy to appeals also, i.e. the circumstances contemplated in Section 14 might, and ordinarily would, constitute a sufficient cause within the meaning of Section 5 (see AIR 1937 276 (Privy Council) The order under appeal was passed by the Senior Subordinate Judge, Mandi, on 2-9-1958.

An appeal was presented to the District Judge on 16-10-1958, i.e., well within limitation. The memorandum of appeal was, however, returned on 26-12-1958 on the ground that since the order under anpeal was passed in a suit, the valuation of which exceeded Rs. 5,000/-, he (the District Judge) had no jurisdiction to hear the appeal. Thereupon, the appeal was presented to this Court on 27-12-1958. If the time during which the appeal remained pending in the Court of the District Judge (from 16-10-1958 to 26-12-1958) be excluded, on the analogy of Section 14 of the Limitation Act, this appeal would be within limitation. Learned counsel for the respondents submitted that the appellant was not entitled to the benefit of the provisions of Section 14, Limitation Act, because the appeal to the District Judge was not instituted or prosecuted in good faith, as defined in Section 2(7), Limitation Act.

It was vehemently urged that since the valuation of the suit was well above Rs. 5,000/-, counsel should have had no difficulty in realizing that an appeal from the order, sought to be set aside, lay directly to this Court, vide paragraph 31(b), Himachal Pradesh (Courts) Order, 1948. Reliance was placed on Dina Nath Vs. Munshi Ram and Others, where a Division Bench of that High Court observed that

"The appeal would lie to this Court. No question of bona fide mistake arises nor does it show any good faith because if the legal advisers of the appellant had only taken the trouble of looking up any elementary book on Court-fees and Suits Valuation Act, they would have discovered this. Good faith has been defined in the law of Limitation in Section 2(7) as follows:

''good faith'': nothing shall be deemed to be done in good faith which is not done with due care and attention."

On behalf of the appellant, my attention was invited to AIR 1937 276 (Privy Council) , Devi Das Vs. Bushahr Sangh, and Triumala Bhaskara Rao Naidu Vs. Panasa Narayanamma and Another, In the Privy Council decision, their Lordships were pleased to hold that :

"Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the meaning of Section 5, Limitation Act, though there is certainly no general doctrine which saves parties from the results of wrong advice."

In AIR 1953 Him-Pra 110, my learned predecessor pointed out that:

"Though the appellant has to account for every day of the delay in filing an appeal, if by the exclusion of time u/s 14 the appeal be still within limitation, the appellant will be deemed to have explained every day of the delay."

In (S) Triumala Bhaskara Rao Naidu Vs. Panasa Narayanamma and Another, a Division Bench of that High Court remarked that:

"The plaintiff is entitled to the exclusion of the period u/s 14 of the Act only when it is established that the mistake was due in spite of due care and attention, that is to say, that the mistake was due not on account of the negligence of the party or his legal adviser who was left in charge of the case."

"The party is not completely absolved of all his responsibilities and does not automatically become entitled to the protection under the provisions of Section 14 merely by entrusting all his work on a vary worthy lawyer of the locality, but the Court has got to examine and scrutinise the conduct of the lawyer."

"If, on such scrutiny, it is found that the conduct of the lawyer was palpably negligent and that the view taken by him was unreasonable, the plaintiff has got to suffer for the conduct of his counsel. But if the finding is otherwise, that in the position of the law then existing, the counsel could reasonably take the view even though mistaken, that is to say, if the lawyer was not palpably negligent, the plaintiff is to be allowed protection u/s 14 of the Act."

In Civil Misc. Petn. No. 6 of 1959, seeking the benefit of the provisions of Section 14 of the Limitation Act, it has been stated that the appeal was taken to the Court of the District Judge, because the suit had been dismissed and the only order which was passed to the detriment of the appellant was a direction to the effect that court-fees, amounting to Rs. 946.87 nP. be recovered from him. It was this liability which the appellant desired to get rid of. It was submitted that although the appeal was taken to the District Judge under a mistaken notion, nevertheless, counsel had not been palpably negligent. This Court takes note of the fact that this is the first appeal of its kind that has come before it in recent years. Although Section 14 does not in terms apply to an appeal, nevertheless, its principles would apply by analogy to appeals also, i.e. the circumstances contemplated in Section 14 might, and ordinarily would, constitute a sufficient cause within the meaning of Section 5 (see AIR 1937 276 (Privy Council) . Having regard, therefore, to the ratio decidendi, cited earlier, I would hold that the time spent in prosecuting the appeal before the District Judge should be excluded u/s 5, i.e. on the analogy of Section 14 of the Limitation Act. If that is done, the appeal would be within time. Civil Misc. Petition No. 6 of 1959 is accordingly allowed and the appeal held to be within time.

Coming to the merits of the appeal, learned counsel for the appellant urged, vehemently, that the Court below has overlooked the mandatory provisions of Order 33, Rules 10 and 11, Civil P. C. He pointed out that Rule 10 would apply only where the plaintiff succeeds in the suit and not outside it. Similarly, Rule 11 would apply where the plaintiff fails in the suit, although he or she might have derived some advantage outside the suit. In the present case, Mt. Masti had claimed a sum of Rs. 2,160/- as arrears of maintenance and future maintenance at the rate of Rs. 75/- p.m. The plaintiff had been permitted to sue as a pauper. On 2-9-1958, i.e. the date fixed for recording the plaintiff''s evidence, the plaintiff put in a petition to the effect that she had recovered the arrears of maintenance from the defendant, out of Court. Accordingly, she did not wish to prosecute the suit any further and desired that it should be "consigned to the record-room". On the basis of this petition, the lower Court dismissed the suit.

Having come so far, the learned Subordinate Judge goes on to say: "No doubt the plaintiff in the compromise as well as in her statement, has stated that the suit be dismissed, but her statement and the compromise show that she has got the required relief from the defendant. In fact, the plaintiff has succeeded though she might have got her suit dismissed. It cannot be said that the plaintiff has failed in the suit. Apparently, the plaintiff has succeeded in the suit and the court-fee is to be recovered from the defendant under Order 33, Rule 10 of the Civil Procedure Code". No authority however has been cited by the learned Senior Subordinate Judge for coming to this conclusion, i.e. although the suit was dismissed the court-fees were to be recovered from the defendant under Order 33, Rule 10.

Learned counsel for the appellant contended that the provisions of Order 33, Rules 10 and 11 are mandatory and they cannot be departed from by looking at extraneous facts and circumstances, i.e. whether the plaintiff had derived some advantage from the defendant outside the Court. I find considerable force in this argument. My attention was invited to the following authorities :-- (i) The Secretary of State for India in Council v. Bhagirathibai ILR 31 Bom 10 There, a Full Bench of that High Court, in dealing with a similar provision under the old Civil Procedure Code, held that :

"If a plaintiff, who has been permitted to sue as a pauper, withdraws from the suit without permission u/s 373 of the CPC (Act XIV of 1882) as the result of a compromise by which he obtained a substantial part of the relief claimed, he does not succeed in the suit within the meaning of Section 411, but he fails in the suit within the meaning of Section 412 of the Civil Procedure Code,"

(ii) Secretary of State v. Narayan Kashiram, 12 Ind Cas 29 There, following Secretary of State v. Bhagirathibai, ILR 31 Bom 10 a Division Bench of that High Court held that:

"Whenever a suit is dismissed, whether at the request of parties or not, it is the plaintiff who is the party defeated and he must be made to pay the court-fee to the Government."

(iii) The Collector of Vizagapatam v. Abdul Kharim Sahib ILR 21 Mad 113 There, the facts were : "This was a suit instituted in forma paupe-ris, which was dismissed without contest on the 25th August, 1896, against defendants Nos. 1 to 6 without costs, the plaintiffs being ordered to pay costs to defendant No. 7. A question arose whether the stamp duty was payable by the plaintiff and notice was served on the Collector. The District Judge made no order against plaintiff for payment of court-fees. He said this case appears to be on all fours except that the suit proceeded as far as the final hearing instead of only as far as the settlement of issues, with the case of the Collector of Kanara v. Krishnappa Hedge ILR 15 Bom 77 where it was decided that Section 412 of the CPC applied only to cases of adjudicated failure, and that there was no adjudication of the rights of the parties, and the plaintiff could not, therefore, have been said to have failed in the suit; the case did not fall within the section at all". On a revision petition being preferred on behalf of the Secretary of State in Council through the Collector of Vizagapatam, a Division Bench of the Madras High Court held that :

"The Bombay case relied on by the District Judge has been dissented from by this Court in Lakshmikantam v. Lakshmi-devamma (Referred Case No. 12 of 1893 unreported). Sir T. Muttusami Ayyar there observed : ''The words in the section are ''succeeds'' and ''fails in the suit'' and they refer to the ultimate decision or the result of the suit and not to the mode in which the decision is arrived at. I should be doing violence to the language of the section if I introduced into them the words ''after contest'' which I do not find in them''. We see no reason to dissent from this view. We accordingly allow the petition and direct that the plaintiffs in the suit do pay the Collector the stamp duty payable on the plaint and the costs of this application."

On the strength of the above authorities, it must be held, in the present case also'' that although the plaintiff, Mt. Masti, might have obtained favourable terms from the defendant, out of Court, nevertheless, she did not succeed in the suit within the meaning of Order 33, Rule 10. At the risk of repetition, I may point out that the provisions of Order 33, Rule 10 are attracted only where the plaintiff succeeds in the suit and not outside the suit. Therefore, in directing that the court-fee be recovered from the defendant, the Court below acted against the terms of Order 33, Rule 10. As such, that order cannot be maintained. It further follows--for the same reasons--that Mt. Masti either failed in the suit or withdrew it within the meaning of Order 33, Rule 11, she and she alone could have been directed to pay the court-fees, which would have been paid, if she had not been permitted to sue as a pauper.

ORDER

I accordingly allow this appeal and set aside the order of the Court below, directing the recovery of a sum of Rs. 946.87 nP from the appellant by way of court-fees under Order 33, Rule 10. In place of that order, I substitute another order under Order 33, Rule 11, directing the plaintiff-respondent, Mt. Masti, to pay the court-fees, which would have been paid by her, if she had not been permitted to sue as a pauper. The appellant will get his costs of the appeal from the respondents.