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Petitioner: H. H. S. FELDMAN VS Respondent: THE PROVINCE OF EAST BENGAL
Court Name: Sindh High Court Judge(s): Muhammad Hayat Junejo, Noorul Arfin Title: H. H. S. FELDMAN vs THE PROVINCE OF EAST BENGAL Case No.:L. P. A. No. 137 of 1964 L. P. A. No. 122 of 1969 Letters Patent Appeal No. 165 of
JUDGMENT
Reported As: PLD 1970 Karachi 295 Result: Appeal dismissed Judgment JUDGMENT MUHAMMAD HAYAT JUNEJO, J.----This is a plaintiff's appeal against the judgment and decree of a learned Single Judge of this Court, whereby the learned Judge dismissed the appellant's suit for the recovery of Rs. 1,23,797-9-6 of which Rs. 99,407-9-6 were claimed as damages and Rs. 24,390- 0-0 as interest at the rate of six per cent. Per annum from 29th May 1952, up to the date of institution of the suit. 2. The case of the appellant (plaintiff) was that he had entered into a contract with the respondents (defendants) whereby he undertook to supply about 6,500 tons of sea salt to the latter from Aden to Chittagong. For this purpose the appellant chartered a ship namely, s.s. "Tang Shan". The contract was performed by the appellant when s.s. "Tang Shan" arrived at Chittagong Port with the cargo on 15th April 1952. The respondents, however, did not make the necessary arrangements for unloading the same, although they were in a position to do so immediately. As a result of this the ship was delayed and had to remain in the port of Chittagong till 28th May 1952, whereas it should have in the ordinary course left by 5th May 1952 which was the maximum time that the respondents should have taken to discharge the entire cargo after allowing the lay time and the demurrage time fixed by the Charter Party. The respondents paid Rs. 77,251-0-0 as demurrage at the rate of E250 per day for the detention of the ship in excess of the agreed time, but declined to pay the loss alleged to have been suffered by the Karachi Steam Navigation Co. During the same time, which was to the tune of Rs. 1,75,658-9-6 of this Rs. 77,251-0-0 having been paid by the respondents, the balance amount of Rs. 99,407-9-6 with interest was due to the appellant and was claimed by him.
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3. The respondents' (defendants') case was that the appellant's offer to supply salt was conditionally accepted by the respondents, vide their telegram dated 24-1-1952. The alleged contract was, however, never accepted by the respondents. The respondents were, therefore, at the most liable for --250 per day as contained in their litter dated 26-1-1952 and the payment of Rs. 77,251 made by them was in full discharge of their liability. It is stated in the written statement of the respondents that payment of this amount having already been made, there remained no liability of the respondents; and the appellant having accepted this amount must be deemed to have accepted it in full discharge of the respondents' liability and was estopped from making any further claim. 4. On the pleadings of the parties the following issues were framed :- (1) Is the suit barred by limitation? (2)Has this Hon'ble Court jurisdiction to try the suit? (3) Is the alleged contract not in accordance with the provi--sions of section 175(3) of the Government of India Act, 1935? If so what is the effect? (4) What were the terms of the contract between the plaintiff and the defendant? (5) Are the defendants liable to pay the increased demurrage charges as claimed by the plaintiff? (6) Is the plaintiff entitled to the claim in suit against the defendant on the basis of the alleged agreement between the plaintiff and the shipping company? (7) Did the defendants neglect to make arrangements for unloading the ship? If so, what is the effect? (8) At what rate the defendants were liable to pay the demurrage ? (9) What amount has the plaintiff paid in respect of demurrage charges? If so, is he entitled to claim the same from the defendant ? (10) Was the amount of Rs. 77,251 paid by the defendants in part payment of their liability? What is the effect of the defendant accepting this amount? (11) Is the defendant liable to the plaintiff' for the claim in suit or any other sum? (12) Is notice under section 80, C. P. C. Valid? (13) What should be the decree? 5. The learned Single Judge considered issues Nos. 1, 2 and 10 in the first instance. He decided issue No. 2 in favour of the appellant but as on issues Nos. 1 and 10 his findings were against him he dismissed the appellant's suit by his judgment dated 3-9-1963. 6. Mr. K. A. Ghani, the learned counsel appearing for the res--pondents before us has raised a preliminary point that this appeal is time barred as it was filed beyond the prescribed period of limitation. It is admitted by both the learned counsel appearing in this case that after the judgment was signed on 3-9-1963, a certified copy of the same was applied for by the appellant the very next day, i.e. On 4-9-1963, and it was made ready on 21-9-1963. The decree was signed thereafter on 23-10-1963 and this appeal was presented in Court on 9-1-1964. As however, the court-fee paid on the memorandum of appeal was only Rs. 5 as against the estimated amount of Rs. 2,076 the office raises( an objection on this ground and returned the appeal to the appellant's Advocates Messrs Surridge and Beecheno on 14-1-1964 for compliance of this objection within seven days. Messrs Surridge and Beecheno, however, for reasons best known to them instead of complying with the objections within the prescribed period of seven days kept the papers with them for over 8 months and re-presented the appeal on 16-9-1964. This time also the appeal was filed without any additional court-fee but .It was accompanied by an application under section 149, C. P. C. For permission to pay the deficit court-fee. On 10-10-1964, the matter was returned by the office with another objection which was complied with on 13-10-1964. The appeal alongwith the application under section 149, C. P. C. Was put up before a Division Bench of this Court which passed the following order on 5-11-1964 :-
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"Let the deficit court-fee be accepted subject to any objection by the respondent at the time of the hearing of the appeal. Admit. Notice." 7. Mr. Hamza A.I, the learned counsel for the appellant has contended that despite the words "subject to any objection by the respondent at the time of the hearing of the appeal", the order dated 5-11-1964 of the Division Bench was final, as a qualified order was not contemplated by law, and we could not, therefore, consider the question of limitation. In support of his contention the learned counsel invited our attention to a case reported as Jowala Singh and others v. Mst. Dhano and others (AIR 1932 Lab. 21) wherein a learned Single Judge observed as follows :---- ---Here the learned District Judge who had jurisdiction to hear the appeal exercised his discretion and allowed the court-fees to be made up. This could only be done under section 149, Civil P. C. That section clearly lays down that upon such payment the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance. To my mind that clearly means that once the Court has allowed and accepted payment no further question of limitation arises. Relying on these observations the learned counsel contends that the appellant, having made up the deficiency in court-fee after he was permitted to do so by the order dated 5-11-1964 of this Court should not now be faced with the prospect of having his appeal rejected as time-barred. The case cited by the learned counsel is, however, clearly distinguishable inasmuch as, the objection regarding insufficiency of court-fee was raised by the respondents and argued in the presence of the parties before an order under section 149, C. P. C. Was passed by the District Judge. This can be seen from the passage relied upon by the learned counsel himself which is reproduced above. Mr. Hamza A.I also referred to another Single Judge case of the same High Court reported as Har Lal and others v. Sri Ram (AIR 1933 Lah. 598). In this case also reliance was placed on the case of Jowala Singh v. Mst. Dhano, referred to above and as only a portion of the judgment has been published we do not know the circumstances under which the, general observations relied upon by Mr. Hamza A.I were made. 8. We may in this connection refer to the case of Acharath Parakkat Kunhammad and others v. Acharath Bappan Karanavan (AIR 1914 Mad. 386) wherein Miller, J. (with whom Tayabji, J. Concurred) observed as follows :- ---Before we heard the appeal, objection was raised on behalf of the defendants that Appeal No. 210 ought to be dismissed as barred by limitation. The order of the admission Court is, `Delay excused.' Mr. Rosario contended that the Court ought not to have excused the delay. The question was raised whether we have power to set aside the order of the admission Court excusing delay. For my part, so far as my knowledge of the practice of the Court goes, what is done, and what I have done, sitting in the admission Court is to make the order, sometimes expressly subject to objection, always with the knowledge that should objection be raised it would be dealt with by the Court hearing the appeal to make the order, that is to say, on such prima facie evidence as may be offered by the appellant and leave it to the Court hearing the appeal, should that order be challenged to decide the question. I do not know whether this practice is a desirable one to follow, but I under--stand that to be the practice of the Court.--- ---Unfortunately in this case the delay was excused by a learned Judge of this Court. It was sought to be argued on behalf of the respondent by Mr. Ramamurthi Ayyar that, as a learned Judge of this Court has excused the delay, the only course for the other side was to file a review application. He drew our attention to the decision of Wallace, J. In Basavayya v. Venkatapayya 51 M L J 90=AIR 1926 Mad. 676 but we are unable to find anything in that decision to lay down that a review is the only remedy open to the party to whom notice was not given before passing an order to his detriment. On the other hand, we are in entire agreement with the observations of the learned Judges in Kunhammad v. Kunhammad, that in cases in which a Judge sitting in the Admission
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Court excuses the delay in payment of court-fee or delay in presentation of the appeal without notice to the other side, it is assumed that the other side would be always at liberty at a subsequent stage or even at the hearing of the appeal to contend that the delay should not have been excused. It is desirable that notice should be given in such cases to the other side to obviate inconvenience and expense which might be avoided if the Court were to eventually refuse to excuse the delay. We, therefore, think that it is open to the other side in this case to come up before us and contend that the delay should not have been excused in the circumstances and if she can persuade us to hold in her favour to dismiss the appeal.--- ---Subject to any objection that may be taken at the hearing, let the deficit court-fee be received, if paid by Monday next.--- their Lordships held that it was only a conditional order and the question of limitation was not decided by the Admission Bench. As the circumstances in this case were similar to those in appeal before us, we cannot resist the temptation of quoting the following observations :- ---We have already set forth our reasons for holding that no Vakil acting with due care and intelligence could have imagined that Rs. 10 was a sufficient court-fee. We have also set forth facts apparent upon the back of the plaint, indicating` that the Vakil not only failed to exercise due care and intelligence in estimating the court-fee, but also when the deficit in the court-fee had been brought to his notice (a deficit which when he gave his attention to the matter he found it impossible to refuse to admit), he acted with wanton negligence from the end of July to the end of November. It has been so frequently held that wanton negligence by Vakil is not sufficient ground for the exercise of the Court's clemency under section 5, Limitation Act, that it is unnecessary to quote cases. We are of opinion that the failure of the plaintiff in this case to file this appeal on a memorandum properly stamped was due to gross negligence on the part of his legal advisers and therefore refuse leave to extend the time. The appeal is, therefore, barred by limitation and is dismissed with costs.--- ---It has been argued that the admission of the appeal by Sankaran Nair, J. Was final, and that the Division Bench had no jurisdiction at the hearing of the appeal to reconsider the question whether the delay was excusable. But this order of admission was made not only in the absence of Ramasami Chettiar, the contesting respondent, but without notice to him. And yet in terms it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour, so that to preclude him from questioning its propriety would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit term of an order like the present that, though unqualified in expression, it should be open to reconsideration at the instance of the party prejudicially affected; and this view is sanctioned by the practice of the Courts in India.--- We may also refer to a case reported as Umed All v. Municipal Committee, Jhangmaghiana (AIR 1922 Lah. 231), where a petition for revision was allowed to be treated as a second appeal at the time of admission subject to the payment of the necessary court-fee within one week, by a learned Judge in Chambers. When the appeal came up for hearing before the Division Bench Scott-Smith and Leslie Jones, JJ., while dismissing the appeal on the point of limitation, observed as follows :- ---The appeal, however, was one which under the rules of the Court had to be heard by a Division Bench and we are of opinion that the Judge who admitted it did not intend to decide any question of limitation. He could not admit the appeal at all until it was properly stamped and his order of admission was of course subject to all just exceptions and to anything which might be urged at the hearing.--- This case was approved by a Division Bench of the Lahore High Court consisting of Sir Abdul Rashid, Actg. C. J. And Khosla, J. In Balwant Singh v. Jagjit Singh and another (AIR 1947 Lab. 210). In that case an appeal was admitted by Sale, J. Who had made it clear in his admission order that his order permitting the appellant to deposit the deficit court-fee shall not be deemed to be an ex
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parte decision by him that the appeal was within time. The learned Judge made the order condoning the delay for the purpose of the admission of the appeal, "subject to all just exceptions", at the bearing. Their Lordships held that in view of these circumstances it could not be held that Sale, J. Extended the time for the payment of the court-fee under the provisions of section 149, C. P. C. Before we conclude our discussion on this point we may also refer to an unreported case of this Court, namely Letters Patent Appeal No. 137 of 1964 (Mst. Saddiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza) in which the following admission order was passed by a Division Bench of this Court :- "(1) Delay condoned subject to any objection by the respondents at the time of the hearing of the appeal. (2) Let the deficit court-fee be accepted subject to any objection by the respondents at the time of the hearing of the appeal. (3) Admit. Notice." When the matter came up for final hearing before a different Bench the plea of limitation was raised by the respondent and their Lordships allowed the plea and dismissed the appeal as time-- -barred with the following observations :- ---It is obvious that a plaint or a memo. Of appeal cannot be treated as properly presented so long as proper court-fee is not paid, therefore, in this case the appeal cannot be taken to have been instituted until the deficiency was made up on the 31st of August 1964. In other words the appeal was instituted on the 31st of August 1964 and was barred by 103 days.--- 9. On the question of limitation the first contention of Mr. K. A. Ghani, the learned counsel for the respondent's was that the appeal was hopelessly time-barked even when it was presented for the first time on 9-1-1964. The period of limitation provided under clause 10 of the Letters Patent, is contained an rule 4 of Chapter I-A, Volume V of the Rules and Orders of the High Court of Judicature at Lahore, which reads - as follows :- ---Every appeal to the High Court under clause 10 of the Letters Patent from a judgment of a Judge sitting singly on the appellate side of the High Court, shall be presented within 30 days from the date of the judgment appealed from unless the admitting Bench, in its discretion for good cause shown, grants further time. The period of limitation for the presentation of an appeal against the judgment of a Single Judge exercising original jurisdiction is 20 days from the date of the judgment (Article 151 of the Schedule to the Indian Limitation Act, 1908). The periods of limitation prescribed in this Rule, shall be computed in accordance with the provisions of section 12 of the Indian Limitation Act, 1908.--- The learned counsel contends that since under the provisions of this rule the memorandum of appeal need not be accompanied by a copy of the decree, order or judgment appealed from, the appellant should not have waited till a copy of the decree was ready on 23-1.2-1963, but he should have filed his appeal within 20 days after the certified copy of the judgment was available on 21-9- 1963, i.e. On or before 12-10-1963 ; but the appeal was presented for the first time on 9-1-1964. In support of this contention Mr. Ghani has relied on an unreported order of a Division Bench of this Court dismissing L. P. A. No. 122 of 1969 (Messrs Asiatic Industries Ltd. v. Zahid A.I) in limine ; and in particular the following observations of Qadeeruddin Ahmed, J. (as he then was), wherein his Lordship referred to rule 4 quoted above and observed as follows :- ---If this rule is read with clause 10 of the Letters Patent of the High Court of Judicature at Lahore, it becomes clear that Letters Patent Appeals are preferred from judgments, and not from decree. The word `judgment' which occurs in the clause, has been interpreted so liberally, that many orders which are made with no possibility of any decree being prepared under them, have been found to
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be appealable. The conclu--sion, therefore, is that, for the purpose of a Letters Patent Appeal, a decree prepared in pursuance of a judgment is of no relevance. We have no doubt that in a Letters Patent Appeal copies of decrees are not only not required by law to be produced, but ordinarily will not even be necessary to look at ; therefore, to try to extend the period of limitation on the ground that a copy of a decree could not be obtained within 20 days, cannot be accepted as a good excuse.--- PLD 1967 SC 271) was distinguished. The attention of their Lordships was, however, not invited to another judgment of the Supreme Court in the case of Tahir A.I and others v. Chief Judge, Karachi Small Causes Court (PLD 1963 SC 147) wherein it was contended that subsection (1) of section 15 of the Karachi Rent Restriction Act, 1953 did not require that the application should be accompanied by a copy of the judgment and order and therefore, the exclusion provided by section 12(2) of the Limitation Act did not apply. Their Lordships repelled this contention by the following observations :- ---A similar question arose in Jijibhoy N. Surti v. T. S. Chettyar and it was held that in reckoning the time for presenting an application, the time required for obtaining a copy of the decree and judgment must be excluded, even though by the rules of the Court it was not necessary to obtain such copies. For the reasons given in the above case we are also unable to uphold this contention of the respondents.--- These weighty observations would apply to the facts of the present case. We, accordingly, hold that although it may not beta necessary to file a copy of the decree or even a copy of the judgment with a Letters Patent Appeal, the period of limitation would nevertheless run from the date when the copy of the decree is made ready if the appellant has chosen to wait for the same. 10. The next contention of the learned counsel for the respondents was that the provisions of section 149, C. P. C. Can be invoked only in cases where the amount of court-fee payable is open to doubt and cannot be ascertained by the Court till the' record is received or in case of a bona fide mistake in calculation. In support of this contention the learned counsel relied on a Division Bench case of the Patna High Court reported as Ram Sahay Ram Pandey and others v. Kumar Lakshmi Narain Singh (42 I C 675) and in particular on the following observations on page 676 thereof :- ---Section 149 of the present Code takes the place of section 582-A of the Code of 1882 and vests a very wide dis--cretion in the Court but, in my opinion, section 149, should not be construed in such a way as to nullify the express provisions of section 4 of the Court Fees Act. When the amount of the court-fee payable is open to doubt or the amount of the fee cannot be ascertained by the Court till the record is received or it appears that the appellant has made an honest attempt to comply with the law, the Court may properly receive the appeal and allow time for the deficiency, if any, to be made good. In the cases before us the appellants have deliberately and to suit their own convenience paid on their appeals insufficient court-fees, in fact they have paid only a small fraction of the fee which they admit are payable by them. In such cases the Court is not, in my opinion, bound to receive the appeal and give the appellant time to make good the deficiency. Assuming that the Court has power to receive these appeals and allow time for the deficiency to be made good, I think that we should be exercising our discretion in an unreasonable manner if we were to do so.--- These observations would no doubt support the contention of the learned counsel to some extent, but we feel, that would be taking too restricted a view of the provisions of section 149, C.P.C. Which reads as follows :- ---Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of
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such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.--- It would thus be seen that there are no words in the section to countenance or warrant such a limited construction of the section as is sought to be put upon it by the learned counsel. In fact, as pointed out in the case cited by Mr. Ghani himself the section appears to vest a very wide discretion in the Court. Moreover, section 149, C. P. C. (1908) as it stands was substituted for section 582-A of the old Code which provided for the validation of insufficiently stamped memoranda of appeals provided they had been presented within the proper period of limitation and "the insufficiency of the stamp was caused by a mistake on the part of the appellant as to the amount of the requisite stamp". Under section 582-A, therefore, the discretion of the Court was fettered by this limitation that the insufficiently stamped memorandum of appeal could not be validated unless the Judge was satisfied that the insufficiency arose from a mistake on the part of the appellant. In section 149 of the present Code, these words of limitation are deliberately omitted thereby suggesting that the Legislature by the new provision intended that the Court should have a free and unfettered discretion in the matter. There seems, therefore, to be no ground for the learned counsel's view that the confessions referred to in section 149, C.P.C. Must be restricted to cases where there was a bona fide misunderstanding of the law as .To valuation. It has also been held by a Division Bench of the Lahore High Court in the case of Jagat Ram v. Misar Kharaiti Ram and another (AIR 1938 Lab. 361) that the question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act. 11. Mr. Hamza A.I, the: learned counsel for the appellant, who appeared to have prepared his brief very well, invited our attention to a Judgment of…
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