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TMI Blog1961 (5) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... document in question, but he held the document to be inadmissible as it was inadequately stamped. Hence be dismissed the suit. On appeal the learned District Judge held the hand note to be a mere receipt for the money paid and as such to be duly stamped and admissible in evidence and hence decreed the Plaintiff's claim. 3 The learned single Judge who beard the second appeal, upheld the judgment of the learned Subordinate Judge but one of the points which had been taken no in the lower courts and which was agitated before him was that though the Plaintiff was a 'registered money-lender' he did not comply with the requirements of Rule 11 of the Orissa Money-lenders Rules, 1939 which runs thus: 11. Every plaint by a money-lender as defined in Sub-clause (1) of Clause (j) of Section 2 shall in addition to any other particulars that may be required by any law, contain the following particulars: (i) The date and number of his registration certificate. (ii) the maximum capital in respect of which he holds certificate, and (iii) a copy of the account referred to in;' clause (a) of Section 7 of the Act, relevant to the case. In the plaint the date and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital of the Plaintiff's money-lending business. In both Rule 11 and Rule 12 the word shall is used which has ordinarily a mandatory force. But as pointed out by their Lordships of the Supreme Court in State of U.P. v. Manbodhan Lal A.I.R. 1957 S.C. 912 (917) the use of the word 'shall' in a statute though generally taken in a mandatory sense does not necessarily mean that in every case it shall have that effect, that is to say, that unless the word's of the statute are punctiliously followed, the proceeding or the outcome of the proceeding would be invalid . On the question as to whether the provision of a statute is mandatory or directory, I may quote the following passage from Crawford on Statutory Constructions (Article 261 p. 516), referred to at page 918 in the aforesaid judgment of the Supreme Court: The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provisions, but also by considering its nature, its design, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff to supply the requisite particulars before rejecting the plaint. The particulars required by Rule 11 are obviously intended to enable the Defendant to put up a proper defence and also to enable the Court to decide whether the suit itself is liable to be dismissed under Section 8 of the Orissa Money-Lender Act on the ground that the registration certificate is not a valid certificate under the Act the necessary information is not given in the plaint, the reasonable course would be for the Court to point out the omission and give the Plaintiff an opportunity to supply the same. 7. The Court's attention may be drawn to this omission either when it makes a preliminary scrutiny of the plaint or else when an objection is raised by the Defendant in his written statement or otherwise. As pointed out in Sadhu Kathalia v. Dhirendranath A.I.R. 1913 Cal. 425 the trial Court has a duty to see whether a plaint contains the particulars required by law. Similarly, in Jagadish Chandra v. Debendra Prasad A.I.R. 1931 Cal. 503 the duty of the Court to look into the plaint to see whether it conforms to the legal requirements was emphasised. It is true that the primary duty of furnishing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner should have been called upon to remove the lacuna within a reasonable time. The language of Section 83 of the Representation of the Peoples Act is as mandatory as the language of Rules 11 and 12 of the Orissa Money-Lenders Rules. It also contain the word 'shall'. Nevertheless their Lordships of the Supreme Court did not hold the provisions of that section to be mandatory so as to justify the summary dismissal of a petition which did not contain all the requisite particulars. 9. Thus the case law dealing with, Section 80, Code of Civil Procedure, Order 7, Rule 11 of Code of Civil Procedure and Section 83 of the Representation of the Peoples Act seems to' in'dicate that mere omission to furnish the particulars required statute may not be a ground for throwing out the plaint unless the Plaintiff is given a reasonable opportunity to supply the omission and fails to avail himself of it. Rules 11 and J2 of the Orissa Money-Lenders Rules cannot therefore be regarded as mandatory in the extreme sense as contended for by the other side. 10. I may now discuss the various decisions of this Court on this question. The earliest is Bahadur Thakur v. Bata Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us. A contrary view was taken by Mohapatra J. in Mahendra Mohanty v. Khira Bewa 26 C.L.T. 264 decided on January 11, 1950. That was civil revision against the judgment of a Small Cause Court Judge decreeing the registered money-lender's claim. In the plaint before the Small Cause Court it was stated that the Plaintiff was a registered money-lender but the other particulars required by Rule 11 were not given. The learned Judge held that the provisions of Rules 11, and 12 were mandatory and non-compliance with those provisions affected the jurisdiction of the Court. Hence the suit was dismissed. Following this view Das J. in Nath v. Achutandnda 26 C.L.T. 583 Samara Munda v. Kartik Sahu 26 C.L.T. 623 and Deba Raj Misra v. Bata Sahu 26 C.L.T. 644 dismissed the suit if the Plaintiff for non-compliance with the provisions of Rules 11 and 12. The judgments of Rao, J. were also noticed by him but he preferred the opinion given by Mohapatra J. in Mohendra Mohanty v. Khira Bewa 26 C.L.T. 264. But in these decisions the question as to whether the particulars required by Rules 11 and 12 were necessary for the decision of those cases, whether the Defendant took any objection on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise due to the uncertainty of law, it is necessary that a decision of a single Judge of this Court should not be ignored or dissented from by another single Judge in a subsequent case. (If he considers that the previous view is incorrect the obvious course is for him to order the matter to a Division Bench as provided in the High Court Rules, unless the earlier view has already been over-ruled by a Division Bench of co-ordinate jurisdiction, (If both benches) differ from each other the decision of the earlier Bench would prevail-see Subha Rayudu v. State A.I.R. 1955 AP 87 Public Prosecutor v. Muthaiah A.I.R. 1961 AP 79 Sashi Busan v. Bhubaneswar Rai A.I.R. 195 Pat 124 Jamuna Rai v. Chandra Dip A.I.R. 1961 Pat. 178 and Alma Ram v. State of Punjab A.I.R. 1959 S.C. 519. 12. I would therefore in agreement with the view taken by Rao, J. hold that though Rules 11 and 12 of the Orissa Money-Lenders Rules should be strictly complied with by the money-lender, nevertheless, where there is omission to furnish the required particulars the Court should in the first instance notice the omission while scrutinising the plaint and give the Plaintiff an opportunity to rectify the same. It is only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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