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1959 DIGILAW 113 (PAT)

Ramji v. Rambhusan Das

1959-09-15

H.MAHAPATRA, K.AHMAD

body1959
Judgment 1. Here the objection raised by the Stamp Reporter is that the cross-objection, as filed, is not maintainable in view of the fact that the memorandum of appeal in the main appeal itself now stands finally rejected. The facts necessary for determination of this point are as follows : 2. The decree which was sought to be appealed from was passed on the 12th August, 1957. Thereafter a memorandum of appeal against that decree was filed in this Court on the 14th November, 1957 on a court-fee of Rs. 22/8/-. In the opinion of the Stamp Reporter, the court-fee paid was insufficient. Accordingly, the matter, after a number of adjournments, came before the Court on the 16th October, 1958. On that date the order passed as to the payment of deficit court-fee was to the following effect: "Three months time is allowed to file the deficit court-fee failing which the memorandum of appeal will stand rejected without further reference to a Bench." Unfortunately, this peremptory order was not complied with, with the result that on the 16th January, 1959, a fresh application was filed for extending the time for payment of deficit court-fee already granted by this Court on the 16th October, 1958, The Court, on a consideration of that prayer, passed the following order : "This Court by the order dated 16-10-1958 gave peremptory time to deposit the deficit court-fee within three months from that date. This application has been filed to extend the time already allowed on the ground that the petitioner is a purdanashin lady and is these days lying ill for some time. On these facts stated on behalf of the petitioner, we are satisfied that the petitioner due to illness has not been able to collect the deficit amount of about Rs. 700/-. The application, therefore, is allowed and the time given in the order dated 16-10-1958 is extended by two months. To that extent the order dated 16-10-1958 stands modified." But in spite of the consideration shown by the Court, the appellants finally failed to pay the deficit court-fee with the result that the memorandum of appeal stood rejected after the expiry of the period allowed in the order passed on the 16th January, 1959. To that extent the order dated 16-10-1958 stands modified." But in spite of the consideration shown by the Court, the appellants finally failed to pay the deficit court-fee with the result that the memorandum of appeal stood rejected after the expiry of the period allowed in the order passed on the 16th January, 1959. In the meantime, i.e., before the appeal had been admitted, the respondents filed a cross-objection on the 25th January, 1959, and the controversy now raised is in relation to this cross-objection. 3. The relevant provision of law on the question of cross-objection is provided in Order 41 Rule 22 Clause (4) of the Code of Civil Procedure, which reads thus : "Where, in any case in which any respondent 5as under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit." 4. The contention raised by Mr. S. N. Mustafi, appearing for the respondents-petitioners is that in this case the appeal has been dismissed for default and, therefore, for that reason, the cross-objection cannot be dismissed. In support of this contention reliance has been placed by the learned Advocate on the decisions, Ayilu Reddi V/s. Venkata Reddi AIR 1931 Mad 133 and Baijnath Prasad V/s. Umeshwar Singh, AIR 1937 Pat 550 (SB). It is true that in the former decision, there is a general observation made which reads : "that a reasonable construction of the word default occurring in that rule would include any default made by the appellant which would amount to non-prosecution of the appeal." But that observation has to be read in the light of the facts as stated therein. Those facts clearly show that the appeal in that case had been dismissed for default, but it was dismissed after it had already been, admitted; otherwise, there was no relevancy for the reference to the provisions of law as provided under Order 17 Rule 3 of the Code. 5. And so far as the latter decision is concerned, that clearly deals with the question relating to the plaint and not relating to the suit. 5. And so far as the latter decision is concerned, that clearly deals with the question relating to the plaint and not relating to the suit. It is quite understandable that there may be a plaint in the eye of law, but still there may not be a suit as contemplated by the Code of Civil Procedure. Further, the decision given in the Patna case, AIR 1937 Pat 550, does not at all deal with the point raised here. Therefore, in our opinion, the decisions cited by Mr. Mustafi do not assist us in accepting the contention raised by him. As against the contention of Mr. Mustafi there are series of decisions given by different High Courts which clearly lay down that in the case where the memorandum of appeal has been rejected, there is no appellant and no respondent and as such, there is no occasion for filing any cross-objection. These decisions are to be found in Kashiram V/s. Ranglal, AIR 1941 Bom 242, Lajpat Rai v. Lachhman Das, AIR 1920 Lah 24 (1), and, U. Shin V/s. Maung Tha Gywe, AIR 1931 Rang 38 : ILR 8 Rang 538. Further, a bare reading of the law as laid down in Order 41 of the Code of Civil Procedure clearly shows that thereunder there is a clear distinction made between rejection of a memorandum of appeal and dismissal of the appeal. The question of dismissal of the appeal arises only when the same has already been admitted as provided in Rule 9 Order 41 of the Code of Civil Procedure, and so long as the appeal is not admitted. a7? that is done is with regard to the memorandum of appeal. The memorandum of appeal may suffer from a number of defects, with the result that so long as those defects are not removed, the appeal is not admitted. That being so, if before the admission of the appeal the memorandum of appeal is rejected, it cannot be said that the steps taken till then are steps taken in connection with or relating to dismissal of the appeal and not relating to or in connection with the rejection of the memorandum of appeal. Here it is not denied that the court-fee paid on the memorandum of appeal was not sufficient and, therefore, the appeal could not be admitted unless the deficit Court-fee had been paid. Here it is not denied that the court-fee paid on the memorandum of appeal was not sufficient and, therefore, the appeal could not be admitted unless the deficit Court-fee had been paid. Unfortunately, in spite of the extension of time allowed, as stated above the deficit court-fee was not paid. Therefore, at no stage of the case any occasion arose for the admission of the appeal. That means, what happened in this case is that the memorandum of appeal was rejected and not that the appeal was dismissed. Further it may be noted that in this case as the appeal had not been admitted, no notice was issued to the respondents in connection with the appeal. 6. For all these reasons, we think that in this case the contention advanced by Mr. Mustafi cannot be accepted and that the cross-objection filed on behalf of his clients has to be rejected as infructuous.