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1997 DIGILAW 82 (KER)

Shajahan v. Kamala Narayanan

1997-02-20

K.V.SANKARANARAYANAN, T.V.RAMAKRISHNAN

body1997
Judgment :- Ramakrishnan, J. Has the Court power or jurisdiction to extend the time for payment of 9/10th Court fee payable under S.4A of the Kerala Court Fees and Suits Valuation Act (for short 'the act) beyond the period of 30 days provided under the proviso to that section even if there are sufficient reasons for nonpayment of court fee within that time is the point referred for decision by the Division Bench in that ease. A similar question regarding the power and jurisdiction of this Court and appellate courts in general under S.52 of the Act to extend the time for payment of 2/3rd of the Court fee required to he paid at the time of admission of the appeal has come up for consideration before a J Division Bench of this Court on a reference in Elizabeth. Francis (1991 (2) KLT779). The Division Bench has answered the reference by holding that this Court has power to extend the time beyond 30 days mentioned in the second proviso to S.52 of the Act taking note of the very wide powers granted to the Court under Ss.148 and 149 of the Code of Civil Procedure, especially S.149, in the matter of extending time fixed by the Court for payment of the required Court fee. 2. In the reference order in this case, the learned judge has taken the view that the decision in Elizabeth's case (supra) requires reconsideration. The main reason indicated by the learned judge for doubling the correctness of the decision in 's case (supra) and taking, a view in the Elizabeth's matter contrary to that taken by the Division Bench in the above case is that the provisions in Ss.4A and 52 of the Act are provisions really extending a concession to the litigant coupled with the obligation to make up the balance Court fee within the time stipulated in the respective Sections itself and no litigant can claim that he will take advantage of that limb of the provision which is to his advantage and will refuse to abide by the limb that is to his detriment or which is not to his advantage. In the light of the reference made, we have to consider once again the question as to what the court should do when a suitor asks for extension of time for payment of balance Court fee in view of the provisions in S.4A, the scheme of which is more or less similar to the scheme of S.52, though the earlier Division Bench has hopefully expected that their 'pronouncement may set at rest' that question. 3. The question referred may have to be decided with reference to S.4A of the Act and Ss.148 and 149 and 0. VII R.11 CPC, which are thus: "Section 4A. Levy of fee at the time of institution of suit:- Notwithstanding anything contained in any other provisions of this Act, the amount of fee to be paid on plaint at the time of institution of suit shall be one-tenth of the amount of fee chargeable under this Act and the balance amount shall be paid within such period, not later than fifteen days from 'the date of framing of issues or where framing of issue is not necessary, within such period not exceeding fifteen days as may be specified by the Court: Provided that the Court may for sufficient reasons to be recorded in writing extend the period up to thirty days. Provided- further that if the parties settle the dispute within the period, specified or extended by the Court for the payment of the balance amount, the plaintiff shall not be called upon to pay such balance. Section 148. Enlargement of time.- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Section 149. Section 148. Enlargement of time.- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Section 149. Power to make up deficiency of Court fees - Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees, has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fear and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been in the first instance. Order VII R.11. Rejection of plaint - The plaint shall be rejected in the following cases:-xxxx (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; 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 such time would cause grave injustice to the plaintiff." 4. S.4A of the Act is a new provision introduced in the Act by the Amendment Act 6 of 1991. As per the above provision, the amount of fee to be paid on the plaint at the time of institution of the suit is fixed as 1/10th of the amount of fee chargeable under the Act. The section also provides that the balance amount shall be paid within such period not later than 15 days from the date of framing of issues or where framing of issues is not necessary, within such period not exceeding 15 days as may be specified by the Court. The section also provides that the balance amount shall be paid within such period not later than 15 days from the date of framing of issues or where framing of issues is not necessary, within such period not exceeding 15 days as may be specified by the Court. The first proviso to S.4A further provides that the Court may, for sufficient reasons to be recorded in writing, extend the period upto 30 days. In view of S.4A, S.5 may have application only to cases where the fee required to be paid at the time of presentation of any document itself is not paid full y and not to cases of default in payment of balance Court fee under S.4A of the Act. Going by the wording of the proviso, it may not be reasonable to interpret and understand the said proviso as a provision intended to restrict the power of extension of time for payment of Court fee conferred on the Court under any other Act. At best it can be considered only as a provision imposing an embargo on the power conferred on court to extend the period for payment of court fee under that Section. 5. In the absence of any kind of indication, in the section itself or in any other provisions of the Act as to what should be the consequence of the failure to pay the balance Court fee payable under S.4A of the Act, it becomes necessary to refer to the provisions contained in the CPC which prescribes the procedure to be followed generally in the case of all civil proceedings. If that be the correct legal position, Ss.148 and 149 and the provisions in Order VIIR.11 CPC have got direct application in the matter. S.148 is a general provision couched in very wide terms conferring power on the court for enlargement of time fixed or granted by the Court for doing of any act prescribed or allowed by the Court in its discretion from time to time either before or after the expiry of the period originally fixed or granted. S.149 is a provision specifically conferring very wide powers on the Court for granting time for payment of court fee in its discretion at any stage. S.149 is a provision specifically conferring very wide powers on the Court for granting time for payment of court fee in its discretion at any stage. O. VII R.11 CPC is the provision which specifically mandates that the plaint shall be rejected 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 papers within a time to be fixed by the Court fails to do so provided that the time fixed by the Court for 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 supplying the requisite stamp papers within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. 6. From the above analysis of the relevant provisions, it is fairly clear that even though as per the provisions in S.4A of the Act and O. VIIR.11CPC, restrictions have been imposed on the power of the Court to extend the time for payment of Court fees as indicated in those provisions, such restrictions cannot override or cancel the general power conferred on Courts in very wide terms to grant time for payment of the whole or any part of the Court Fee in its discretion at any stage under S.149 CPC. As already indicated, there is nothing in the express wording of S.4A of the Act to take the view that application of S.149 CPC is altogether excluded by the provisions contained in that Section. Though S.4A begins with a non-obstante clause, it refers only to the other provisions of the Act and not to any other law. As such, it is only reasonable to hold that the provisions in S.4A may not have the effect of excluding the operation of Ss.148 and 149 CPC even if the provision in the proviso is held to be mandatory. In otherwords, it has to be held that the provisions in S.4A and the provisions in S.149 and O. VII R.11 CPC are supplementary or complementary to each other. In otherwords, it has to be held that the provisions in S.4A and the provisions in S.149 and O. VII R.11 CPC are supplementary or complementary to each other. A harmonious interpretation of the above provisions alone will be justifiable and acceptable when we keep in mind the principle of interpretation that no provision of an enactment should be interpreted and understood in such a manner as to render another provision in the same or another enactment totally ineffective or inoperative unless there is express indication to that effect. The direct result of holding that the proviso to S.4A of the Act is mandatory in character and in view of the said provision the Court has no power at all to extend the time for payment of Court fee payable under S.4A of the Act beyond 30 days is to make the entire provision contained in S.149 ineffective or nugatory. Such an interpretation of the two provisions would be quite contrary to well accepted principles of interpretation of statutes and cannot in our view be accepted as legal. 7. We find sufficient justification for taking the above view in the following weighty observations of the Supreme Court made in Manmm Lal v. Chhotka Bibi (MR 1971 SC 1374), referred to and relied upon by the Division Bench in Elizabeth's case (supra): "Apart from the decision bearing on the point, no doubt that S.4 of the Court Fees Act is not the last word on the subject and the Court must consider the provisions of both the Act and the Code to harmonies the two sets of provisions which can only be done by reading S.149 as a proviso to S.4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it...." (Emphasis supplied) In the same decision, it has also been pointed out that "the provisions of the Court Fees Act and the Code of Civil Procedure have to be read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other". In Indian Statistical Institute v. Associated Builders (AIR 1978 SC 335) also the Supreme Court has reiterated the same principle with reference to S.149 of the Code in the matter of payment of deficit Court fee. 8. Of course, it is true that the Supreme Court has laid down the principles noted above with reference to S.4 of the Court Fees Act 1872 and S.149 CPC and the scheme for payment of Court fee as it existed then. But, it will be useful to note that before making the relevant observations, the Supreme Court has traced the historical background in which S.582A (provision corresponding to S.149) of the Code of Civil Procedure, 1882 was inserted by Act 6 of 1892. After pointing out the background, the Supreme Court has further pointed out mat it was to mitigate the rigour of the provisions contained in Court Fees Act that S.582 A of the old CPC was enacted. S.149 is the provision corresponding to S.582A. If that was the purpose of enacting Ss.582A and 149 of the old and new CPC s.,we find no justification to take the view that the proviso to S.4A will preclude a party from seeking time beyond 30 days mentioned in the proviso to S.4A under S.149 and the Court from granting such prayer in appropriate cases in its discretion at any stage of the proceedings under S.149 CPC. 9. In this connection, it is also relevant to refer to the Full Bench decision of this Court in Kathayee Cotton Mills Ltd. Alwaye v. V.R. Padmanabha Pilhri (1957 KLT 1174 FB) wherein the Full Bench has taken a similar view while considering the effect of the proviso to R.11 of the O. VII CPC prior to 1976 amendment which was to the following effect: "Provided that time granted under clause (b) and (c) shall not exceed 30 days in all". (Emphasis supplied) The proviso to S.4A of the Act is also similarly worded and no distinction can be made between the above two provisions. Even after holding that the proviso is mandatory, the Full Bench has held that it may not deprive the Court of the general power conferred on it under S.149 CPC in granting time for paying the deficit Court fee in appropriate cases even beyond 30 days under S.149 CPC. Even after holding that the proviso is mandatory, the Full Bench has held that it may not deprive the Court of the general power conferred on it under S.149 CPC in granting time for paying the deficit Court fee in appropriate cases even beyond 30 days under S.149 CPC. The fact that the proviso considered by the Full Bench was one added to a provision in the CPC itself and the proviso in question is one incorporated as part of a provision in the Court Fees Act may not be of much consequence if the provision of both the Act and the Code are to be interpreted harmoniously as laid down by the Supreme Court in Mannan Lai's case (Supra). 10. Of course, we are not forgetting the historical reality that S.149 CPC is a provision which existed at a time when there was no provision like S.4A in the Act. But, at the same time, the existence of a mandatory provision restricting the power of extension of time upto a maximum period of 30 days contained in S.4A may not in our view be a sufficient reason to interpret and understand the said provision as one having the effect of making the provision in S.149 CPC nugatory. So long as S.149 stands in the Code and so long as it is settled that the provisions in the CPC and in the Act are supplementary or complimentary to each other, we are inclined to take the view that inspite of the mandatory nature of the provision contained in S.4A of the Act, the Courts have ample jurisdiction to extend the time for payment of deficit Court for as provided in S.149 CPC in appropriate cases though not under S.4A. This we think is the correct legal position even if the facility afforded to pay only 1/10 th of the full Court fee payable at the time of filing the plaint is treated as a concession granted coupled with a liability to pay the balance within the time allowed by the Section itself; as assumed by the learned Single Judge; so long as S.149 is also a provision to be reckoned within the matter as a provision which confers a discretionary power on the Court to grant time for payment of deficit Court fee at any stage on the application of the parties in appropriate cases. As the said section confers a discretionary power on the Court, the litigant may get aright to approach the Court to grant time in its discretion in appropriate cases using its judicial discretion. 11. We may, however, add a word of caution here itself so that the view taken by us in this matter should not be understood or treated as one permitting extension of time indiscriminately ignoring the significance of the restrictions imposed in the matter of extension of time for payment of balance Court fee or deficit Court fee contained in S.4A of the Act and R.11 of the O. VII CPC, to all suitors who fail to pay the Court fee within the time allowed under those sections and who approach the Court under S.149 of the Code as a last resort. We may note in this connection that as per the proviso to S.4A even for extending the time upto 30 days the Court is directed to record sufficient reasons in writing. In this connection, it is relevant to note that the suitor may get a further opportunity to me up the deficiency under O. VII R.11 CPC wherever it applies. Under the said provision, the Court is empowered to extend the time for supplying requisite stamp papers if the Court finds for reasons to be recorded that the plaintiff was prevented by any cause of exceptional nature from supplying the requisite stamp papers within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. It is only after exhausting the above remedies available the question of extension of time under S.149 CPC may arise and as such it is only in extraordinary circumstances such exercise of power will be justified. For all practical purposes an extension of time under S.149 CPC can possibly be granted only in rarest of the rare cases. In this view, we would hold that Courts may have power to extend time even if the suitor has omitted to supply the requisite Court fee or stamp papers within the time granted by the Court under S.4A of the Act even assuming that the provision in the proviso is mandatory and that under that provision extension can be given only upto 30 days. 12. 12. We would accordingly hold that in spite of the provisions in S.4A of the Act, the Court may still have power to extend the time for supplying the deficit Court fees though such cases may be very rare. In the circumstances, we do not find any reason to reconsider the decision in Elizabeth'.y case (Supra). On the contrary, we would in fact respectfully agree with and adopt all the reasons given by the Division Bench in the above case in support of the view which we have taken in this case. 13. In this view, having regard to the peculiar facts and circumstances of this case, we would allow the plaintiff a very short extension of time for payment of the requisite court fee, namely ten days from today. If the requisite Court fee is paid within the time granted above, the Court below will restore the plaint and proceed to dispose of it in accordance with law. CRP is thus allowed. No costs.