090-NLR-NLR-V-37-DE-SILVA-v.-HASSANALLY.pdf
436
de Silva v. Hassanally.
1936Present: Macdonell C.J. and Poyser J.
De SILVA v. HASSANALLY.
126—D. C. (Inty.) Galle, 33,930.
Plaint—Insufficiently stamped—Accepted by Court—Objection raised bydefendant—Deficiency supplied by plaintiff—Plaint made good.
Where a plaint insufficiently stamped is accepted by the Court andthe plaintiff, on an objection raised by the defendant, supplied thedeficiency of stamp duty,—
Held, that the irregularity was cured and' that the action should not be
dismissed.
Jayawickreme v. Amarasooriya * followed.
^^PPEAL from an order of the District Judge of Galle.
C. V. Ranawake (with him S. W. Jayasuriya), for plaintiff, appellant.
L. A. Rajapakse, for first defendant, respondent.
• 15 C. L. Bee. 5.2 17 N. L. R. 174.
MACDONELL C.J.—de Silva v. Hassanally.
437
March 11, 1936. Macdonell C.J.—
This was an appeal from an order of the District Court striking out theplaint lodged by the plaintiff in a section 247 action on the ground thatit was insufficiently stamped. The facts were these. The plaintiff,intending to bring a section 247 action, filed his plaint on March 14, 1935,admittedly within the fourteen days allowed by that section, and it iscommon cause that the plaint was insufficiently stamped at that time.The plaintiff took out summons. Thereafter on July 10, 1935, theproctor for the first defendant moved that the plaint be rejected on theground that it had been insufficiently stamped and notice was given tothe plaintiff for the argument of this matter a week hence, July 17.On July 16 occurs the following entry in the journal. The proctor forplaintiff “ tenders stamps of the value of Rs. 9 being deficiency of stampduty and moved that the same be accepted. Stamps cancelled andaffixed”. The inquiry was duly held and the learned Judge on theauthority of the decision in British Corporation v. United Shipping Board1—this has now been confirmed by the three Judge decision in Attorney-General v. Karunaratne ‘—held that he could not draw a distinctionbetween a petition of appeal and a plaint, since the statute requiredboth of them to be properly stamped and to be filed within aprescribed time. He held therefore that the decision in 36 N. L. R. 225governed the matter, and dismissed the plaintiff’s action. From thisdecision the appeal is brought.
The law on the subject of stamping plaints is to be found in two sectionsof the Civil Procedure Code. Section 39 says, “ Every action of regularprocedure ”—this will include a section 247 action—“ shall be institutedby presenting a duly stamped written plaint ”, and section 46, aftergiving the reasons for which the Court may in its discretion refuse toentertain a plaint, goes on to say that “ (h) Where the relief sought isproperly valued, but the plaint is written upon paper insufficientlystamped, and the plaintiff on being required by the Court to supply therequisite stamps within a time to be fixed by the Court fails to do so. . . . the plaint shall be rejected ”. It will be seen from thefacts in this case that the plaint when presented was not duly stampedas section 39 requires it to be, and that the plaintiff did not wait to berequired by the Court to supply the necessary stamp within the timefixed by the Court but tendered the right stamp sponte sua. Strictlyit is not a case which the Code has provided for. This requirementabout stamps on pleadings is one in the interests of the revenue and theparty must pay for such stamp as the revenue requires. When he hasaffixed such stamp to his pleading, it will be receivable, unless the lawsays that he has been too late in affixing the stamp. Now the portionof section 46 which has been quoted above, read in conjunction withsection 39, shows that a plaint insufficiently stamped when presentedis not incurably bad, but that the Court can give the person bringing theplaint a time limit within which to stamp it properly, and there can beno doubt that if the person presenting it does stamp the plaint withinthe time given him by the Court, the plaint becomes a perfectly good one.We can put it this way. If the plaintiff puts himself right with the‘ 36 N. L. R. 225.* 37 N. L. R. 57.
37/32
438
MACDONELL CJ.—de Silva v. Hassanally.
revenue on the orders of the Judge his plaint becomes good; is itreasonable to say that he should be in a worse position if he does notwait for the orders of the Judge but puts himself right with the revenueof his own mere motion? Clearly it is not reasonable to say that heshould in such a case be in a worse position. I would say then onprinciple, and interpreting these two sections in what seems to be areasonable way, that in this case the plaintiff’s plaint was good and thathis action should not have been dismissed.
It would seem, however, that apart from such an argument on theinterpretation of the two sections in question, there is a decision,Jayawickrama v. Amarasooriya1 which is binding upon us. It is atwo-Judge decision and in it Pereira J. says, at page 175, as follows: —“ In the case, however, of a plaint or answer being accepted per incuriam,that is to say, as the result of an inadvertent omission on the part ofthe Court to consider the question of the sufficiency of the stamp thereon,it may be that before any step in the regular course of procedure is takenby the opposite party the Court may return the pleading to be properlystamped ; but this question need not be considered on this appeal,because we have no information from the District Judge that the plaintin this case was accepted by him per incuriam, and no order returningthe plaint was, in fact, made before the filing of the answer. When aJudge, having considered the question of the sufficiency of stamp duty,has accepted a plaint or answer, or has accepted it having inadvertentlyomitted to consider the question, the remedy, if indeed any exists, canonly be by means of such action as the Attorney-General, as representingthe Crown, to which all stamp duties are a debt, may be deemed to beentitled to take. It will be embarrassing to both the parties to anyaction and lead to disastrous results, if, for instance, at a very late stageof the action a pleading can be thrown out for default of either partyto make good any deficiency in stamp duty With this judgmentEnnis J. agreed, though he was not at one with Pereira J. as to thelatter’s interpretation of section 37 of the Stamp Ordinance. Thatdisagreement does not, however, it seems to me, militate against theauthority of the judgment since it is quite clear that Ennis J. agreedwith the portion of the judgment of Pereira J. which has been set outabove. In that case it is not very clear whether the plaint had beenproperly stamped at any time; here the plaint was properly stamped onJuly 16, 1935, and apparently the facts here are more in the plaintiff’sfavour than those in the case Jayawickrama v. Amarasooriya (supra).On the evidence in the present case it looks as if the learned Judge didaccept the plaint when the stamp was put upon it, and that havingdone so, it was too late for him thereafter to reject the plaintiff’s action.But however that may be, the case Jayawickrama v. Amarasooriya (supra)quoted above does seem an authority that a plaint is not ipso facto badbecause the stamp was not put on when the plaint was tendered andauthority also that the plaint can be properly stamped at a later time,even though the Court has not made order under section 46 (h) but theplaintiff has affixed the stamp of his own motion. That at least seemsto be a conclusion that follows from the judgment.
» 17 N. L. R. 174.
Ndit v. Saundias.
430
With all respect, the judgment below went wrong in holding that thevery strict rule as to stamping appeals to be found in section 755 alsoholds good with regard to plaints. I do not think that it does, andfor this difference you can suggest a perfectly good reason. A man canonly appeal when there has been a pronouncement of a Court againsthim. The presumption is that that pronouncement is right and it is notunnatural therefore that the law should impose a strict rule upon aperson maintaining that that pronouncement against him is wrong.But there is not the same presumption against a person presenting aplaint which is the initial stage of litigation and earlier than anypronouncement.
For the foregoing reasons I am of opinion that this appeal must beallowed with costs, and the plaintiff’s action reinstated to be deemed tohave been filed on March 14, 1935; costs below to be costs in the cause,save for the costs of the inquiry on July 24, 1935, which the plaintiffshould have in any event.
Povser J.—I agree.
Appeal allowed.