Report No. 144

5.1.11. Recommendation.-

It is suggested that the first view, i.e. the narrower view, should be preferred and incorporated in the section. Having regard to various considerations, including in particular the need for finality at some stage in such matters, the amendment should provide as above, by adding a suitable Explanation to section 104(2) on the subject. The present language of section 104(2) also favours this approach. The new Explanation could be somewhat on the following lines:

"Explanation.-Where an order is passed by a single Judge of the High Court in an appeal from an order passed by a court subordinate to the High Court, no further appeal shall lie against the first mentioned order, notwithstanding anything to the contrary contained in the Letters Patent constituting the High Court."

5.2. Section 107 and Deficiency in the Court Fees

5.2.1. A question arising out of section 107 (also connected with Order 7, rule 11) may now be considered. Where the memorandum of appeal appears to be deficient in court fee the question arises as to what order the court should pass. Section 167 reads as under:-

"Section 107.-(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power-

(a) to (d) x x x

(2) Subject as aforesaid, the appellate court shall have the same powers, and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of suits instituted therein."

Order 7, rule 11 reads as under:

"Rejection of plaint.-The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint be barred by any law:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the Court and that refusal to extend the time would cause grave injustice to the plaintiff."