Research › Search › Judgment

Kerala High Court · body

2000 DIGILAW 73 (KER)

Ambika Thilakan v. Mohanan

2000-02-02

M.R.HARIHARAN NAIR

body2000
ORDER M.R. Hariharan Nair, J. 1. The revision petitioner, who is the plaintiff in O.S.No.635 of 1993 of the Munsiff's Court, Cherthala, is aggrieved by the refusal of the court to invoke the power under S.149 and 151 of the Civil Procedure Code to extend the time for payment of the balance court fee. 2. The suit for declaration of easement right was filed on 25.9.1993 and the case was posted for payment of court fee on 20.3.1997. On that day there was no representation on behalf of the plaintiff and so the plaint was rejected. 3. The plaintiff filed an application to review the order dated 20.3.1997 and to restore the suit. The petition was originally allowed on 26.9.1997; but based on I.A.No.2920 of 1997 filed by the defendants the matter was reviewed and the earlier order was cancelled. After further hearing of the matter, the impugned order was passed finding that the plaintiff having availed the benefit of S.4A of the Court Fees Act cannot plead ignorance regarding his liability to remit the balance court fee within 15 days after framing issues or such other time as provided by the court and thereafter the extension was unjustified. 4. The learned counsel for the revision petitioner placed reliance on Varghese v. Devi Academy ( 1999 (1) K.L.T. 440 ) in support of the contention that the limit of 15 days is not rigid enough to disallow extension for the plaintiff. 5. I have heard the learned counsel for the respondents also. It is submitted that this is not a case where the order of rejection can be modified in exercise of the power under S.151 C.P.C. 6. It is true that under S.4A of the Court Fees Act the balance court fee has to be paid within 15 days after the framing of the issues. This is subject to an inbuilt proviso that the court can extend the time. This itself shows that the time limit is not inflexible. In the instant case, the deficit court fee was to the tune of Rs. 18/- only. There is nothing on record to show that there is wilful laches on the part of the plaintiff to pay the balance court fee. This itself shows that the time limit is not inflexible. In the instant case, the deficit court fee was to the tune of Rs. 18/- only. There is nothing on record to show that there is wilful laches on the part of the plaintiff to pay the balance court fee. Varghese v. Devi Academy ( 1999 (1) K.L.T. 440 )is authority for the proposition that the courts have to adopt a course that will advance furtherance of substantial justice and any delay involved in such matters can be condoned unless there is gross negligence on the part of the plaintiff in making the payment. The question may arise whether extension of time can be allowed by courts when the statute (Kerala Court Fees and Suits Valuation Act) has fixed a maximum time limit under S.4A. That aspect is concluded by the decision in Shajahan v. Kamala Narayanan ( 1997 (1) KLT 569 ) where it was found that the general power to extend time available to Courts under S.149 of the C.P.C. is not obliterated by the restriction in S.4A of the Kerala Court Fees and Suits Valuation Act, 1959 though the power should not be exercised indiscriminately to extend time whenever it is asked for. Whether the default is wilful, the stake involved, the quantum of deficit involved etc., are all relevant factors. Viewed from this perspective, I am of the view that the review and extension sought for should have been allowed. In so far as the impugned order is against the dictum laid down in the decision cited supra, the revision is to be allowed. 7. The impugned order is hence set aside and the suit (O.S.No.635 of 1993) is restored to the file of the Munsiff's Court, Cherthala. It will be proceeded with in accordance with law after granting reasonable further time to pay up the deficit court fees, if it is not yet paid up. 8. The above Civil Revision Petition is allowed.