P L D 1970 Dacca 532 (PLP)

This is an application for condonation of delay in filing the Memorandum of Appeal and is described as one under section 5 of the Limitation Act. Facts given rise to this application are as follows:‑ The plaintiff filed a suit being Other Suit No. 318 of 1963 in the Second Court of Munsif, Rangpur wherein he prayed for return of four Rickshaws from the defendants or in the alternative for a decree for a sum of Rs. 1,500 as price of the said four Rickshaws. The defendants denied this claim of the plaintiff and contended that the Rickshaw in question belonged to them and the plaintiff is not entitled to the decree as prayed. According to the defendants the suit was brought out of enmity and grudge. The suit was decreed by the trial Court. The defendants filed an appeal against the judgment and decree of the trial Court and the same was also dismissed. Thereafter, the defendants decided to file a second appeal in this Court against the judgment and decree of the lower appellate Court. The court‑fee required for filing the appeal is Rs. 225 and the last date of limitation was 14‑12‑

67. The defendants who were rickshaw pullers and had rickshaw‑repairing business could not collect the amount of court‑fee at that time and as such they filed a memorandum of appeal with a court‑fee of Re. 1 only on 4‑12‑

67. A petition was filed by them on 6‑12‑67 praying for time to make up deficiency in court‑fee. They pointed out that the defendant No. 1 is facing temporary difficulty in procuring the money for the court‑fee and he had some lands on which there was standing crops. They will be fit for harvesting within a month and half, and as such, they prayed for two months' time to make up the deficiency of the court‑fee of Rs. 224 in the aforesaid appeal. Within this period the crop would be easily sold in the market and the necessary amount collected. This petition was heard by Sayem, J. on 12‑12‑

67. Mr. Fazlul Karim, the learned Advocate for the petitioners, submits that when the hearing was concluded in this matter on 12‑12‑67, the judgment was kept reserved without fixing any date. On 14‑12‑67, however, my learned brother Sayem, J. rejected the said petition for time and directed to return the said memorandum of appeal to the learned Advocate. On the following day, i.e. on 15‑12‑67, the learned Advocate for the appellant‑petitioners sent a letter to his clients intimating them about rejection of the prayer for time and asked them to come immediately with the required court‑fee. This letter was received by the petitioners on 26‑12‑

67. The petitioners, thereafter, tried to dispose of some of their movable property for the purpose of procuring the required court‑fee. They, however, could not succeed in doing that immediately because it was a difficult time for selling such articles as it was the later part of Ramadan and the people were devoting their entire earnings for the purpose of purchases for the Idd which was to take place in a few days time. The appellant‑petitioners collected their money soon after the Idd celebration and arrived in Dacca. They succeeded in harvesting the paddy and selling the same on 10 1‑68 after the Idd celebration was over and came to Dacca on 14‑1‑68 with the money for the required court‑fee and met their learned Advocate for the purpose of putting in the deficit court‑fee. The necessary amounts were deposited and the court‑fee was obtained and the same was tendered in this Court in the 3rd week of January 1968. The petitioners, therefore, pointed out that in this process they made a delay of 33 days in furnishing the full court‑fee in this matter. The defendant‑petitioners, therefore, contended that the delay in q presenting the requisite court‑fee was beyond their control and they have adequately explained the reasons for the delay. They r acted all through diligently and honestly, and, as such, prayed condonation of the delay and for accepting the memorandum of appeal and register the same. Thereafter, the defendant‑appellants filed this application and obtained this rule on 22‑1‑68 from Mr. Justice Sayem. Mr. Fazlul Karim, the learned Advocate for the petitioners contends that the petitioners are entitled to a condonation of delay in presenting the entire court‑fee in this case as they have adequately explained the reasons for the delay in furnishing the court‑fee in question. Mr. Mahmood ul Islam, the learned Advocate for the opposite‑party, however, contends that this petition for condonation of delay is not maintainable and is liable to be rejected in view of the earlier decision of this Court passed on 14‑12‑

67. The point that arises is whether the present application for condonation of delay is maintainable or not. It is true that the prayer of the plaintiff‑petitioners for extension of time for two months for furnishing remainder of the court‑fee was heard and rejected by this Court. The petitioners, thereafter filed this application and obtained the present rule. In doing so, they tendered the remainder of the court‑fee for acceptance. Order VII, rule 13 of the Code of Civil Procedure provides that the rejection of a plaint does not on its own force preclude a plaintiff' from presenting a fresh plaint in respect of the same cause of action. In view of the provisions of section 107(2) of the Code of Civil Procedure an appellate Court has the same powers of an original Court in this regard. It is, therefore, obvious that the rejection of the prayer for time will not preclude the plaintiff‑petitioners to present the memorandum of appeal if the same is otherwise in order. Under the present circumstances, I am of the view that the memorandum of appeal which was already filed should be taken to have been presented afresh by the appellants on the date of the furnishing of the remainder of the court‑fee. This view of mine finds support from a decision of the Calcutta High Court in the case of Jnanadasundari Shaha v. Madhabchandra Mala (1). After reciting the facts of that case which has resemblance with the facts of the present appeal Suhrawardy, J., with whom Graham, J., concurred observed as follows:‑ "Such an order is a decree as defined in section 2 of the Code, and it is submitted that by virtue of the provisions of section 107(2), the order passed by the Judge on 7th January 1931, should also have the force of a decree and that the order can only be set aside by appeal or review and that the Judge had no jurisdiction to ignore it and to receive subsequently the memorandum of appeal. I find it difficult to accede to this view of the law for in the first place it is not a case where the relief claimed was undervalued and the plaintiff was asked to put in the court‑fee upon proper valuation, but it is a case where the appellant deliberately put in insufficient court‑fee upon the memorandum of appeal which was valued properly. In the second place 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. But it is not necessary to go into this matter further, because, in view of the provisions of section 107(2) an appellate Court is invested with all the powers of an original Court and has accordingly the same powers as are conferred upon an original Court under Order VII, rule 13 which says that the rejection of a plaint shall not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Applying this provision mutatis mutandis to the case of appeals the rejection of a memorandum of appeal by the appellate Court shall not, of its, own force, preclude the appellant from presenting a fresh memorandum or proper court‑fee. In this view it would seem that the order passed by the learned Judge on 17th January 1931 was an order receiving a fresh memorandum of appeal from the appellant and registering the appeal. I am inclined to hold that after the rejection of the memorandum of appeal, the proper court‑fee having been paid, the memorandum thus brought in order should be taken to have been presented afresh by the appellant on 17th January 1931." From the above observation it will appear that even if the memorandum of appeal had been rejected which is not the case here still a fresh memorandum of appeal could have been presented if the same would have been otherwise in order. With regard to Court's power to grant extension of time under section 148 of the Code of Civil Procedure even after the prior order has expired, our Supreme Court has held that the same can be done under certain circumstances. In the case of Shah Wall v. Ghulam Din alias Gaman and another (P L D 1966 S C 983), Hamoodur Rahman, J. observed as follows:‑ "Section 148 of the Civil Procedure Code gives the Courts powers to extend time previously fixed or granted by it for the doing of any act prescribed or allowed by the Code of Civil Procedure and this they can do even after the period originally fixed or granted has expired. But this section, it is now well settled, does not apply where the period is fixed by a decree in a suit unless the decree is in the nature of a preliminary decree and the Court still retains seisin over the action. The principle upon which it has been so held is that since a decree normally puts an end to a suit the power of the Court to pass any other order with respect to that particular suit thereafter also comes to an end and the Court becomes functus officio with regard thereto. The exception made in the case of a preliminary decree is also on the same basis that in the case of such a decree the Court does not become funcrus officio but still retains control over the action and therefore, has full power to make necessary orders therein including an order for the extension of time. This distinction is not without importance, for, even orders contained in decrees, which are not strictly speaking preliminary decrees, may not always be such as are intended to operate some control over the litigation." Though this case deals with regard to the deposit of the money in a suit for pre‑emption still the principle as laid down by the Supreme Court is of general importance relating to the jurisdiction of Court in granting extension of time even when the time previously granted has expired. Judging the question on the basis of that principle I am of the view that the present application is maintainable. Next point urged by Mr. Mohidul Islam on behalf of the opposite‑party is that section 5 of the Limitation Act is not applicable in this case. It is further contended that even if the presentation of the remainder of the court‑fee in relation to the memorandum of appeal which was already filed is taken into consideration still it cannot be said that section 5 of the Limitation Act is applicable in this case. It is true that the petition for condonation of delay and for acceptance of the memorandum of appeal for registering the same is described as one under section 5 of the Limitation Act still what has to be seen is whether the facts alleged by the petitioners made out a case for the condonation of delay or not and whether this Court has any power to condone such delay in presenting the memorandum of appeal. The learned Advocate for the petitioners has contended that though his petition is described as one under section 5 of the Limitation Act still the same should be treated as one to be so read along with the powers contained in sections 148, 149 and 151 of the Code of Civil Procedure. In the case of Jnanadasundari Saha v. Madhabchandra Mala, a Division Bench of the Calcutta High Court observed that the appeal under such circumstances should not be registered without deciding whether the appellant is entitled to extension of time under section 5 of the Limitation Act. Suhrawardy, J., with whom Graham, J. concurred, observed as follows:‑ "In view of the decisions of the Judicial Committee in Krishnasami Panikondar v. Ramasaml Chettiar A I R 1917 P C 179 and Sunderabai v. Collector of Belgaum A I R 1918 P C 135 the learned Judge should not have registered the appeal without deciding the question as to whether the appellant was entitled to extension of time under section 5, Limitation Act. But, as is observed in Krishrasami Panikandar's case in an order like this, there is a tacit term that the question under section 5, Limitation Act, will be considered on objection being taken by the respondent. In the present case such objection was taken on 24th February 1931, and the learned Judge, by his order of 12th March 1931, overruled that objection and held that the explanation of the appellant for the delay was reasonable and that there was no reason why time should not be extended. It cannot therefore be said that the order of 12th March 1931, was passed without jurisdiction. It may be that the order was not explicit as to the ground on which time was extended, or that, under the circumstances of this case, the order was wrong, but that may be a matter for higher appellate Court, but it cannot, for those reasons, be said that the order was passed without jurisdiction. I should however observe that an order passed extending time under section 5, Limitation Act, should give sufficient indication that the discretion given by the law has bean judicially exercised." A case of similar facts came up before the Indian Supreme Court. The Patna High Court passed an order to the effect that three months time was granted to pay court‑fee in a particular case and it was further ordered that if the court‑fee is given within the time then the plaintiff will be granted a decree. The plaintiff, however, failed to pay court‑foe within the stipulated time and in accordance with the order of the Court the appeal stood dismissed as the court‑fee was not paid within time. Thereafter, the plaintiff‑appellant moved a application under section 151 of the Code of Civil Procedure, for extension of time of filing the court‑fee which was rejected. Subsequently, another petition under section 151 read with Order XLVIII, rule 1 of the Code of Civil Procedure for review was filed to secure the relief which also met with the same result. Ultimately, the matter was taken up before the Indian Supreme Court and the Supreme Court of India in the case of Mahanth Ram Das v. Qanga Das (A I R 1961 S C 882), observed as follows:‑ "Section 148 of the Code in terms, allows extension of time, even if the original period fixed has expired, and section 149 is equally liberal. A fortiori, those sections could be invoke by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on July 13, 1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from July 8, 1954. How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with the events that might arrive in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be, inexpedient. Such procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example it cannot be said that, if the appellant has started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the lain of the Medes and the Persians. Cases are known in which Courts have moulded their practise to meet a situation such as these and to have restored a suit or proceeding, even though a final order had been passed." Again it was observed:‑ "But we are of opinion that in this case the Court could have exercised its powers passed first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under section 151 of the Code of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions, sections 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come. In our opinion the High Court was in error on both the occasions. Time should have been extended on July 13, 1954, if sufficient cause was made out and again when the petitions were made for the exercise of the inherent powers." Their Lordships of the Privy Council in the case of Faizullah Khan and another v. Mauladad Khan and others (A I R 1929 P C 147), observed as follows at page 148:‑ "It will be observed that that discretion extends to the whole or any part of any fee prescribed and can be exercised at any stage in the case, while finally upon the extra payment being made, then the document is to have the same effect as if it had, been paid in the first instance. This also answers the argument presented under the Limitation Act. The dates are as follows:‑ The decree of the Subordinate Judge was dated 24th March 1924, the first appeal was on 27th May and the second on 2nd June, bringing before the appeal Court the respective claims of each suitor. The time for Limitation of the appeal is 90 days, and it is thus seen that both appeals were within time. They were not a nullity. On the contrary, they were documents duly presented to and accepted by the Court, and as to the fee thereon, should the valuation be unsatisfactory or in the end insufficient, that is validated by the additional payment, the result of which payment is that the document; namely, the memorandum of appeal, stands good from its date. The appeals are accordingly not time‑barred." In another case their Lordships of the Judicial Committee of the Privy Council approved the same leniency in the matter of payment of deficiency of court‑fee. This is the case of Lachmi Narayan Marwary and others v. Balmakund Marwary and others (A I R 1924 P C 198) wherein their Lordships observed as follows:‑ "Their Lordships are fully sensible of the necessity of leaving the Judges in India with ample power of discipline, and means to check neglect and delay. If, for instance, the Subordinate Judge had made an order adjourning the proceedings sine die; with liberty to the plaintiff to restore the suit to the list on payment of all costs and court‑fees if any, thrown away, it would have been a perfectly proper order." Similar view is also taken in the case of Stuart Skinner alias Nawab Mirza v. William Order and others (6 I A 126). From the above authorities it will be abundantly clear that even when a prayer under section 149 is rejected and extension of time refused for the payment of remainder of the court‑fee still this Court is not precluded from exercising its jurisdiction in granting the time and condoning the delay if a proper case is made out for that purpose. This of course, has to be done after considering carefully the facts involved. Each case, however, is to be decided in the light of its own facts. It is, therefore, necessary to consider whether the petitioners have made out a case of sufficient reason for which the delay could be condoned. The learned Advocate for the petitioners pointed out that the memorandum of appeal with deficit court‑fee was filed on 4‑12‑67 which was 10 days before the last date of limitation for presenting the appeal. The prayer for condonation of delay was made on 6‑12‑67 and the matter was finally heard on 12‑12‑

67. The learned Advocate for the petitioners submits that after the hearing was concluded, judgment was reserved without fixing any date for the purpose. Ultimately, on the last date of limitation i.e. on 14‑12‑67 judgment was delivered. The information of the rejection of the prayer though sent on the following day by registered post by the learned Advocate, actually reached his clients on 16‑12‑

67. The Idd holiday took place within one week from that date and this Court reopened on 8th January 1968 after the Idd holidays. The petitioners came to Dacca with their learned Advocate for the purpose and obtained the required court‑fee for presenting the same in this Court and the same was tendered on 18‑1‑

68. The petitioners, thereafter succeeded in obtaining the present rule on 22‑1‑68 from my learned brother Sayem, J. The learned Advocate for the petitioners has, therefore, contended that in spite of the fact that the intimation reached the petitioners about the rejection of their prayer in the last week of Ramadan and in spite of the fact that the Idd holidays took place soon after that still the petitioners succeeded in coming to this Court and presenting the deficit court‑fee within less than two weeks after the re‑opening of this Court after Idd holidays and in about three weeks time from their date of knowledge of the rejection of their petition under section 149 of the Code of Civil Procedure. Mr. Mahmudul Islam, the learned Advocate for the opposite-party, has, however, contended that poverty and financial stringency are no ground for granting extension of time in this regard. It is true that poverty may not be a sufficient ground for securing extension of time, but that is not the only reason shown by the learned Advocate for the petitioners. Facts which have to be noted are these that the plaintiff‑appellants presented the memorandum of appeal within time though the same was insufficiently stamped. An application as made on their behalf for getting an extension of time for two months for the purpose. From the facts and circumstances mentioned above, it will show that the petitioners have acted expeditiously and bona fide throughout and as soon as the information about the rejection of their petition was brought to their knowledge, they took steps in the matter and succeeded in making good the deficit court‑fee in about three weeks time from the date of their knowledge in spite of the fact that it was the last part of Ramadan and the Idd festival intervened in between. The learned Advocate's contention that in spite of the rejection of their prayer under section 149 of the Code of Civil Procedure the petitioners are entitled to a reasonable time to comply with the order of the Court merits consideration. Under these circumstances, I am of the view that under inherent powers of this Court under section 151 of the Code of Civil Procedure read with sections 148 and 149 of the Code along with section 5 of the Limitation Act it is necessary that relief should be granted to the petitioners in this case. Under these circumstances, the petitioners are granted extension of time in this matter and the delay made by them in presenting the court‑fee is condoned and is ordered that the memorandum of appeal be accepted and registered. The rule is accordingly made absolute. In the fact and circumstances of the case, the parties are directed to bear their own costs. A. B. Rule made absolute.