P.S. Narayana, J.
1. On 8.7.1998 this Court made the following order:
Admit in view of the substantial question of law raised in ground No. 2
2. Ground No. 2 of the Memorandum of Grounds of Second Appeal reads as hereunder:
The lower Court has erred in rejecting the plaint under Section 35 of Indian Stamp Act. The lower Courts ought to have seen that the said provision can be invoked only at the time of trial when the document is being 'admitted in evidence' under Order 13 Rule 3 of C.P.C. and not earlier.
3. The present second appeal is filed as against an order made in AS No. 66 of 1995 on the file of Additional District Judge, Madanapalle. The said appeal was preferred as against an order made in an un-numbered Small Cause Suit of the year 1995 on the file of the learned Subordinate Judge, Madanapalle.
4. Sri M. Venkata Ramana Reddy, learned Counsel representing the appellant had taken this Court through the order made by the Court of first instance and also the appellate Court and would maintain that the reasons recorded are unsustainable since the plaint is returned for compliance of certain objections, the appellant-plaintiff is entitled to carry out such corrections or such suitable amendments and that cannot be a ground to negative the relief. The Counsel also would submit that these are all the aspects which may have to be gone into at the appropriate stage and rejection of plaint at the threshold cannot be sustained. The learned Counsel also would maintain that the rejection of plaint being a decree, as against that an appeal was preferred AS No. 66 of 1995 on the file of Additional District Judge, Madanapalle, and the same was dismissed, and aggrieved by the same the present second appeal is preferred.
5. Sri Rajasekhar, the learned amicus curiae made the following submissions:
The learned amicus curiae had taken this Court through the different provisions of the Code of Civil Procedure, hereinafter in short referred to as Code, for the purpose of convenience, and also different provisions of Provincial Small Causes Courts Act, hereinafter in short referred to as Act, for the purpose of convenience, and placed reliance on several decisions and would maintain that in the light of the language employed in the provisions specified above, the appeal itself is not maintainable and hence there is no question of maintaining a further second appeal. The learned Counsel also, however, would contend that as far as the corrections carried out after the plaint was returned for representation, the same cannot be found fault with at this stage.
6. The un-numbered small cause suit was instituted on the file of Subordinate Judge, Madanapalle by the appellant herein, the plaintiff, and the learned Subordinate Judge rejected the plaint in view of bar of Section 35 of Indian Stamp Act. Aggrieved by the same, an appeal AS No. 66 of 1995 was preferred on the file of the learned Additional District Judge, Madanapalle, and the learned Additional District Judge also, after framing the point for consideration at paragraph 2, recorded reasons at paragraphs 3 to 5 and ultimately dismissed the appeal. Aggrieved by the same, the present second appeal is preferred.
7. As can be seen from the order made by the learned Subordinate Judge, Madanapelle, it appears that the office had taken four objections and returned the plaint for compliance and the second objection raised by the office is as hereunder:
it should be stated how the suit document is maintainable when it is insufficiently stamped. The stamp must be Re. 1/- as per Act 32/94, dated 13.5.1994 of finance.
The said objection was raised on 17.4.1995 granting seven days time for resubmission and on 24.4.1995, the learned Counsel representing the plaintiff had answered the said objection as hereunder:
The objection regarding the admissibility of the document on the ground that the same is insufficiently stamped can be raised only at the time of tendering the document as evidence and formally proving the same i.e., at the time of trial when the document is marked as exhibit and not at earlier stage. The suit is yet to be numbered. Hence the said objection cannot be raised at this stage.
It was again returned on the ground that the third objection was not complied and the relevant objection, which was specified, is as hereunder:
With regard to query No. 2, the pronote is suit document in this suit for realization of amount. The question of admissibility of the document will arise only at the time of admission of the suit. Hence the querry No. 2 dated 17.4.1995 should be complied with.
Again the plaint was resubmitted on 29.4.1995. Concerning the second objection, the learned Counsel represented with the following endorsement:
The suit is filed on original cause of action i.e., the defendants have borrowed the suit amount on 1.10.1994 at 10.30 a.m. and agreed to repay the same on the same day but they expressed their inability to repay the same and in token thereof the defendants executed the suit document and debit note acknowledging their liability to repay the same. Hence the admissibility of suit document i.e., promissory note does not arise as the suit is based on original cause of action in view of the decision reported in AIR 1973 AP page 342 the suit may be numbered.
The matter was directed to be called on Bench and the matter was heard at length and reasons in detail had been recorded and ultimately the learned Judge came to the conclusion that the plea of original cause of action had been introduced only to meet the objection taken by the office and to overcome the inadmissibility of the suit promissory note and hence the plaint cannot be registered and accordingly the plaint is to be rejected in view of the bar under Section 35 of the Indian Stamp Act.
8. As already referred to supra, the matter was carried by way of appeal AS No. 66 of 1995, wherein at paragraph 2 the following point for consideration was framed:
Whether the order of the Court below suffers from any material irregularity of fact or law.
The learned Judge after referring to the relevant provisions and also the decision reported in Yalavarthi Gopal Roa v. Bommisetty Seshaiah : AIR1975AP155 and yet another decision reported in Lothamasu Sambasiva Rao v. Thadawarthi Balakotaiah 0044/1973 : AIR1973AP342 , after recording reasons and also the relevant provisions of Finance Act 32/94 dated 13.5.1994 and the Schedules thereunder, came to the conclusion that the suit document is insufficiently stamped and hence hit by Section 35 of the Indian Stamp Act and the finding recorded by the Court of first instance is the correct finding.
9. Sri Rajasekhar, the learned amicus curiae had placed before this Court the decision reported in Hanamanthappa and Anr. v. Chandrashekharappa and Ors. : [1997]1SCR846 , wherein the Apex Court While dealing with Order 6 Rule 17 and Order 7 Rule 10-A of the Code held that the respondents making alterations in plaint which was returned for presentation to proper Court and the said plaint can be treated as fresh plaint and it cannot be dismissed on ground that it contained averments not made in original plaint and it is not always necessary to seek amendment of plaint. In the light of this decision, submissions were made that as far as making certain corrections introducing original cause of action in between the return of the plaint and the representation of the plaint at this stage cannot be found fault with.
10. However, the principal question which has been argued in elaboration is in relation to the maintainability of the second appeal as such, since the first appeal itself is not maintainable as against the rejection of a plaint in a Small Cause suit. Strong reliance was placed on the decision of this Court in Poluru Narasimhulu v. Leela Krishna Textiles 2002 (1) An. WR 541 (AP), wherein this Court observed at paragraphs 5 and 7 as hereunder:
Mrs. Haritha, the learned amicus curiae had contended that Section 96(4) of the Code of Civil Procedure is a specific provision and only in certain specified cases as against a decree on small cause side, appeal lies. The provision governing the present case on hand is only Section 25 of the Act and hence, the revision is maintainable. The learned amicus curiae also had drawn my attention to the recitals of the document and also the pleadings and had pointed out that in the light of the specific pleading taken that the document is only an agreement-letter, the rejection of plaint is unsustainable. The rejection of a plaint is, no doubt, a decree. But, however, in view of the fact that as against the main judgment and decree in a small cause suit governed by the provisions of the Provincial Small Cause Courts Act, 1887, the remedy available under Section 25 of the Act is only by way of revision, in the present case, as against the rejection of the plaint also, a revision is maintainable.
Further reliance was placed on the decision of the Allahabad High Court in Trilok Singh v. Smt. Jamuna Devi and Anr. : AIR1978All129 , wherein at paragraph 18 it was held by the learned Judge of the Allahabad High Court as hereunder:
Lastly, I feel that this appeal itself is to be held to be not maintainable. Section 7 of the Code of Civil Procedure lays down that certain provisions in the body of the Code shall not be applicable to Courts constituted under the Provincial Small Cause Courts Act or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or law. Sections 96 - 112 and 115 C.P.C. are mentioned as some of the Sections of the Code which will not apply to such Courts. It is, therefore, clear that Section 104 C.P.C. also will not be applicable and an appeal under the said section read with Order 43, Rule 1 (W) C.P.C. will not be maintainable. In this connection, Order 50 C.P.C. has also to be referred to, which refers to those parts of the 1st Schedule to the Civil Procedure Code which have been excepted from application to Courts of Small Causes or to Courts exercising special jurisdiction to try suits in the nature of Small Causes. It will be seen that Order 43 is one of such excepted orders. Therefore, this appeal has to be held to be not maintainable. A question whether it would become appealable by virtue of the trial of the suit, on the regular side, does not arise in the instant case because, as I have already emphasized, the trial in the instant case was not on the regular side but as in the suit of the nature of Small Causes and the decree was also drawn accordingly. The appeal is, therefore, to be held to be not maintainable but apart from this aspect of the matter. I have considered the appeal on its merit also.
Reliance also was placed on the decision of the Apex Court in Kedarnath v. Mohan Lal Kesarwari and Ors. : [2002]1SCR144 , wherein the Apex Court at paragraphs 6 and 8 held as hereunder:
The object behind establishing Small Cause Courts conferred with jurisdiction to try summarily such specified category of cases which need to be and are capable of being disposed of by adopting summary procedure of trial is to secure an expeditious disposal and to curtail the lengthy procedure of litigation. Excepting an order for compensatory costs in respect of false or vexatious claims or defences or an order imposing fine or directing the arrest or detention in the civil prison of any person (except where such arrest or detention is in execution of a decree), orders and decrees of Courts of Small Causes are not appealable; they are only revisable by the High Court (or by District Court under Section 115 of C.P.C. as amended in its application to State of U.P.). The jurisdiction to entertain and hear an application to set aside a decree passed ex parte or for a review of judgment by Courts of Small Causes is sought to be qualified and narrow down by imposing condition as to deposit or giving security for performance or compliance by enacting proviso to Sub-section (1). Such a provision fits in the scheme of the PSCC Act. Although there is no authoritative pronouncement by this Court (none brought to our notice) interpreting the nature and scope of the proviso however, the learned Counsel for the appellant brought to our notice a number of decisions delivered by the High Courts of Allahabad, Oudh, Madras, Orissa, Rajasthan and Lahore which have taken the view that the proviso is mandatory and non-compliance therewith would entail dismissal of the application because such non-compliance cannot be condoned or overlooked by the Court. They are, to wit : Mohammad Ramzan Khan v. Khubi Khan AIR 1938 Lah. 18 (DB); Murari Lal v. Mohammad Yasin AIR 1939 All. 46; Mt. Shikhani v. Bishambhar Nath AIR 1941 Oudh 103; Jagdamba Prasad and Ors. v. Ram Das Singh and Anr. AIR 1943 All. 288; Roshan Lal v. Brij Lal Amba Lal Shah AIR 1944 Oudh 104; Vembu Amal v. Esakkia Pillai AIR 1949 Mad. 419; Khetra Dolai v. Mohan Bissovi : AIR1961Ori37 and Dhanna v. Arjun Lal . As the present case arises from the State of Uttar Pradesh, the learned Counsel for the appellant cited a series of decisions delivered by Allahabad High Court so as to show the view of the law being consistently taken there. There are : Krishan Kumar v. Hakim Mohd 1978 All. LJ 738; Sharif v. Suresh Chand and Ors. 1979 AWC 256; Roop Basant v. Durga Prasad and Anr. 1983 (1) ARC 565; Mohd Islam v. Faquir Mohammad 1985 (1) ARC 54; Krishan Chandra Seth v. Dr. K. P. Agarwal and Ors. 1988 (1) ARC 310; Mamta Sharma v. Hari Shankar Srivastava and Ors. 1988 (1) ARC 341; Mohd. Yasin v. Jai Prakash 1988 (2) ARC 575; Purshottam v. Special Additional Sessions Judge, Mathura and Ors. 1991 (2) ARC 129; Ram Chandra (deceased L. Rs.) and Ors. v. IXth Additional District Judge, Varanasi and Ors. page-SC586 AIR 1991 All. 223; Sagir Khan v. District Judge, Farrukhabad and Ors. 1996-27 ALR 540; Mohammad Nasem v. Third Additional District Judge, Faizabad and Ors. : AIR1998All125 and Beena Khare v. VIIIth Additional District Judge, Allahabad and Anr. 2000 (2) ARC 616.
A bare reading of the provision shows that the Legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgment. The provision as to deposit can be dispensed with by the Court in its discretion subject to a previous application by the applicant seeking direction of the Court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex parte decree or for review and the Court may treat it as a previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the Court to make a prompt order. The delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court.
Further reliance was placed on the decision of this Court in Chittuluru Pedda Venkata Subbaiah v. Chittuluru Subba Lakshmaiah 1959 (1) An. WR 455, wherein the learned Judge of this Court while dealing with Sections 17(1) and 25 of the Act held as hereunder:
In respect of Small Cause decrees and orders that no appeal lay against them is manifest in the provisions of Section 7 and Order 50, Civil Procedure Code. Section 7 excludes the operation of Sections 96 - 112 and 115 of the Code to Courts constituted under the Provincial Small Cause Courts Act, while Order 50 serves to make Orders 41 to 45 inapplicable to Courts of Small Causes. The result of this is that judgments, decrees and orders of Courts of Small Causes are not at all appealable. Section 17(1) of the Provincial Small Cause Courts Act which provides for procedure to be followed in Court of Small Causes is to the same effect. Therefore, it hardly follows that the revision under Section 25 of the Provincial Small Cause Courts Act is so comprehensive as to include considerations arising in an appeal or in allowing the entertainment of cross-objections. However, objections taken by the respondent could be considered by virtue of Section 141, Civil Procedure Code. The respondent himself could object to the order, if necessary, by himself filing a revision application against that order.
11. Section 7 of the Code dealing with Provincial Small Cause Courts reads as hereunder:
Section 7. Provincial Small Cause Courts.- The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887, or under the Berar Small Cause Courts Law, 1905, or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law, or to Courts in any part of India to which the said Act does not extend, exercising a corresponding jurisdiction, that is to say,--
(a) so much of the body of the Code as relates to--
(i) suits excepted from the cognizance of a Court of Small Causes;
(ii) the execution of decrees in such suits;
(iii) the execution of decrees against immovable property; and
(b) The following Sections, that is to say,--
Section 9
Sections 91 and 92,
Sections 94 and 95 so far they authorize or relate to--
(i) orders for the attachment of immovable property;
(i) injunctions;
(ii) the appointment of a Receiver of immovable property; or
(iii) the interlocutory orders referred to in Clause (e) of Section94and Sections 96 - 112 and 115.
12. Order 50 of the Code dealing with Provincial Small Cause Courts reads as hereunder:
Provincial Small Cause Courts:--The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), or under the Berar Small Cause Courts of Law, 1905, or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act of law, or to Courts in any part of India to which the said Act does not extend, exercising a corresponding jurisdiction, that is to say,--
(a) so much of this schedule as relates to--
(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;
(ii) the execution of decrees against immovable property or the interest in partnership property;
(iii) the settlement of issues; and
(b) The following Rules and Orders--
Order II, Rule 1 (framed of suit);
Order X Rule 3 (record of examination of parties);
Order XV, except so much of Rule 4 as provides for the pronouncement at once of judgment;
Order XVIII, Rules 5 to 12 (evidence);
Orders XLI to XLV (appeals);
Order XLVII Rules 2, 3, 5, 6, 7 (review)
13. An Act (Act 9 of 1887) is an Act to consolidate the law relating to Courts of Small Causes established beyond the Presidency-towns. Section 24 of the Act deals with Appeal from certain orders of Courts of Small Causes and the provision specifies as hereunder:
Where an order specified in (Clause (ff) or Clause (h) of Sub-section (1) of Section 104 of the Code of Civil Procedure, 1908) is made by a Court of Small Causes, an appeal therefrom shall lie to the District Court (on any ground on which an appeal from such order would lie under that section).
14. Section 104(1) and Clauses 104(ff), 104(ffa) and 104(h) of the Code read as hereunder:
104. Orders from which appeal lies.--(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:
(f) an order under Section 35A.
(ffa) and order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be.
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree.
15. Section 25 of the Act deals with Revision of decrees and orders of Courts of Small Causes, which reads as hereunder:
The High Court for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit.
16. Hence, on the overall appreciation of the decisions referred to supra and also the provisions specified above, this Court is of the considered opinion that as against the rejection of a plaint in a Small Cause suit, an appeal doesn't lie and hence the very filing of the first appeal on the file of the Additional District Judge, referred to supra, being incompetent, no further second appeal would lie to this Court.
17. It is no doubt true that there is inordinate delay since these matters are pending for sufficiently a long time and the appellant-plaintiff has been prosecuting this litigation by approaching the appellate Court and also this Court by filing a second appeal. In view of the facts and circumstances, since the appellant-plaintiff had invoked the jurisdiction of a wrong Forum by filing a first appeal and further yet another second appeal to this Court, liberty is given to the appellant-plaintiff to pursue his remedy in accordance with law by filing appropriate Revision as against the order made by the Court of first instance by moving an appropriate application under Section 14 of the Limitation Act, 1963. Except giving this liberty, nothing else can be done since the very appeal filed before the learned Additional District Judge being incompetent, this Court is left with no other option except to hold that this second appeal is not maintainable.
18. Subject to the above observations and liberty specified supra, the second appeal is dismissed. There shall be no order as to costs.
19. This Court records appreciation for the able assistance rendered by Sri Rajasekhar, the learned amicus curiae.