JUDGMENT
Knox and Burkitt, JJ.
1. This is an appeal from an order rejecting a plaint purporting to have been passed under Section 54, Clause (b) of the Code of Civil Procedure. The plaintiff sued for possession of certain lands and houses. One of the defendants in the written statement filed by him set out that the relief sought had been undervalued. In course of time the Court proceeded to determine the question thus raised by inspection of the house property in dispute. It came to the conclusion that the property bad been undervalued, and fixed what it deemed a correct value, and directed that the plaintiff should within four days supply the deficient Court fee stamps. This order was passed on the 23rd of November 1894. On the 26th of November, that is, before the four days granted had expired, the plaintiff brought a portion of the deficient Court fees into Court, and asked permission to withdraw his claim to a portion of the house property with leave to sue again for the portion thus omitted. The Court very properly refused to grant the petition under Section 373 of the Code until the Court fee duty still deficient had been paid in. The order just recited was passed on the 28th of November. The plaintiff then said that the treasury was closed and he could not put in a Court fee stamp, but he tendered a sum of money equivalent to the deficiency of the Court fees. The Court, being under the erroneous impression, as it says in its order, that the four days granted under the order of the 23rd had not expired, allowed the plaintiff one day more within which to make good the deficiency, and on the 29th the deficiency was paid in Court fees stamps within the period thus enlarged. The defendant objected to the receipt of the deficient Court fees on the 29th on the ground that the time granted had already expired. The Court on the 4th of December allowed the contention raised by the defendant to prevail, and, thinking the case fell within Section 54, Clause (b), and that it had no option but to reject the plaint, so rejected it.
2. Neither Clause (a) nor (b) of Section 54 of the Code had any reference to the case before the Court. The plaintiff had not been required by the Court to correct the valuation, and had not refused to make any correction: Clause (a) therefore does not apply. The relief sought had not been properly valued, so Clause (b) could have no application. The order rejecting the plaint, therefore, was in any case wrong.
3. The law under which the Court could have acted and ought to have acted was Clause ii of Section 10 of Act No. VII of 1870. That section provides that, when a Court finds after investigation that the value placed on property in dispute has been insufficient, it shall require the plaintiff to pay so much additional fees as would have been payable on a correct valuation, and Clause ii provides that the suit shall be stayed till the additional fees be paid. If the additional fees be not paid within such time as the Court shall fix, the suit shall be dismissed. The order which the Court, therefore, should have passed was not an order rejecting the plaint, but an order dismissing the suit.
4. The contention which the defendant raised was precisely similar to that which was raised in reference to an extension of time which had been asked for, but was refused by the High Court of Calcutta, on an application under Section 549 of the Code of Civil Procedure. The words in that section setting forth the consequences of not furnishing security within a fixed time are almost identical with the words used in Section 10, Clause II, of Act No. VII of 1870. The case in question is Budri Narain v. Mussammat Sheo Koer L.R. 17 I.A. 1, at p. 3. The Privy Council held that an application to enlarge the time for giving security may be made either before or after the expiration of the time within which the security has been ordered to be furnished, and that the Court may thereupon enlarge the time according to any necessity which may arise when it is just and proper that such an extension should be given; but, if ultimately the order is not complied with and the security not furnished, the appeal may be dismissed.
5. The words used in Section 10, Clause II, of Act No. VII of 1870, that the “suit shall be dismissed,” are no stronger and not more imperative than the words “the Court shall reject the appeal” in Section 549 of the Code. We have no doubt that the interpretation put by their Lordships on the words in Section 549 of the Code of Civil Procedure should be applied to the words in Section 10 of Act VII of 1870. We note that in the case of Bhugwandas Bagla v. Haji Abu Ahmad I.L.R. 16 Bom. 263, the construction put by their Lordships on Section 549 was held to be applicable to the words “the plaint shall be rejected” in Section 54 of the Code. We hold that the order passed on the 28th of November in this case, granting the extension of one day, was a valid order and under the circumstances a reasonable order.
6. We, therefore, decree the appeal, and set aside the order of the Court below with costs, and we direct the record to be returned to the lower Court which will dispose of the case according to law.
