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2007 DIGILAW 214 (MAD)

K. Kalisamy & Another v. R. Gowri

2007-01-20

S.ASHOK KUMAR

body2007
Judgment :- As against the dismissal of the Interlocutory Application filed under Section Order 7 Rule 11(c) CRP to reject the Plaint, the revision petitioners/defendants have come forward with this revision petition. 2. The said I.A., has been preferred by the revision petitioners stating that the plaintiffs have not paid the entire court fee at the time of institution of the suit, and only paid the deficit court fee belatedly, that too without any orders being passed by the court in I.A.No:218 of 2003 filed by the plaintiffs for extension of time for payment of deficit court fee and therefore the plaintiffs have not paid the deficit court fee as per Section 149 CPC since it is time barred for payment of such deficit court fee and therefore the Plaint is liable to be rejected. 3. On the other hand, the respondent/plaintiff contended that the I.A.218 of 2003 has been admitted and allowed and thereafter only the deficit court fee has been paid and therefore there is no laches in payment of deficit court fee and the plea of limitation cannot be raised. .4. The learned Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore, on a consideration of the averments and also the submissions of the respect counsels and after perusing the court records, dismissed the I.A., filed by the defendants for rejection of the Plaint holding that the I.A.No:218 of 2003 has been allowed by the learned Sub Judge by condoning the delay of 49 days in paying the deficit court fee. Against which, the present CRP is filed. 5. Learned senior counsel appearing for the revision petitioner contended that the claim in the plaint is a sum of Rs.7,62,257/= and the court fee as stated therein is Rs.57,170/=, but only a sum of Rs.3000/= was paid at the time of filing of the suit and a months time was granted for paying the deficit court fee. When that stipulated period also expired, I.A.No:218 of 2003 was filed for condoning the delay of 49 days from thereon in paying the deficit court fee. But no proper orders was passed and this came to light only when the matter came up before the Additional Sessions Judge on the case being transferred. 6. When that stipulated period also expired, I.A.No:218 of 2003 was filed for condoning the delay of 49 days from thereon in paying the deficit court fee. But no proper orders was passed and this came to light only when the matter came up before the Additional Sessions Judge on the case being transferred. 6. According to the learned senior counsel for the revision petitioners, the learned Subordinate Judge has not passed a specific order as to the condonation of the delay in paying the deficit court fee as per the law laid down in the decision of this court reported in 2005(5) CTC 401 . According to the counsel, the learned Subordinate Judge has not passed any specific or clear order in the said I.A., as to either "allowed" or "permitted". 7. According to the learned senior counsel for the revision petitioners no notice was ordered to the other side in the I.A., filed for extension of time and if the same had been done, a just and proper decision could have been arrived at. According to him, the deficit court fee could have been paid only on 4. 2003 and not as on 22. 2003 as claimed by the respondent/plaintiff in her counter filed in the I.A.No.443 2006 filed by the revision petitioners for rejecting the plaint. According to the learned senior counsel several decisions cited before the learned Additional Sessions Judge have not been properly analysed by the learned Judge which resulted in miscarriage of justice. .8. Learned Senior Counsel appearing for the revision petitioners also alleged that mysterious circumstances are shrouded in allowing the I.A.No.218 of 2003 and paying the deficit court fee and he also made allegations against the court officials as they had colluded with the plaintiff to make correct the records. Therefore, this court called for the original records relating to the said I.A.No.218 of 2003 and the Plaint papers and also the xerox copies of the relevant pages of the Court Fee Register relating to the particular period maintained in the Sub Court at Coimbatore. It seen from the Register, that originally a sum of Rs.3000/= was paid on the date of filing the Plaint and subsequently on 22. 2003 a sum of Rs.57,170/= was paid as court fee. A perusal of the Stamps attached with the Plaint would show that there is a court seal dated 22. 2003. It seen from the Register, that originally a sum of Rs.3000/= was paid on the date of filing the Plaint and subsequently on 22. 2003 a sum of Rs.57,170/= was paid as court fee. A perusal of the Stamps attached with the Plaint would show that there is a court seal dated 22. 2003. However, the treasury Seal bears the month of August 1993. In one Stamp Paper of Rs.5000/= denomination, there is no treasury seal. In some stamp papers, the date is not clear. Thus there is a reason to suspect whether these stamps are genuine stamps, because a stamp vendor will not keep the stamps for nearly 10 years without selling it. But for the reasons that the stamp papers does not bear clear treasury seal with dates, a party cannot be blamed for the same, because he may not be aware whether it is genuine stamp or bogus stamp papers. Even now we cannot say with certainty whether it is bogus or genuine stamp papers. However, the fact remains that the proper court fee was paid as on 22. 2003. 9. However, the endorsement dated 3. 2003 as deficit court fee should be paid is without proper application of mind. A perusal of the records would show that in I.A.No.1447 of 2002 filed under Section 149 CPC one months time was granted by the learned Sub Judge on 12. 2002. Thereafter, an application has been filed in I.A.No.218 of 2003 under Sections 148 & 151 CPC, wherein the prayer is to condone the delay of 49 days in paying the deficit court fee. But the Court Clerk has written as follows: "to excuse the delay of 49 days in representing the corrected plaint, under Sections 148 and 151 CPC affidavit filed". On 3. 2003, the learned Subordinate Judge, Coimbatore has passed an order "filed". While the application is for condoning the delay in payment of deficit court fee, the note put up by the court staff is to excuse the delay in condoning the delay in representing the Plaint. Therefore, again the mistake is on the part of the court staff when the Application was filed under Sections 148 and 151 CPC and not under Sections 149 and 151 etc., 10. Therefore, again the mistake is on the part of the court staff when the Application was filed under Sections 148 and 151 CPC and not under Sections 149 and 151 etc., 10. Section 148 CPC is for enlargement of time for the doing of any act prescribed or allowed by the Code and the court may in its discretion from time to time enlarge such period not exceeding thirty days in total even though the period originally fixed or granted may have expired. .11. Section 149 CPC deals with the power to make up deficiency of court fees and the Section provides that the Court 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 fee; and upon such payment the document, in respect of which such fee is payable shall have the same force and effect as it such fee had been paid in the fist instance. 12. Section 151 CPC deals with inherent powers of the Court which enables the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 13. In AIR 1953 SC 431 (Genesh Prasad Vs. Narendera Nath) the Apex Court held that "The question of payment of court fees is primarily a matter between the Government and the person concerned and therefore where the High Court in the exercise of its discretion allows the appellant to amend his memorandum of appeal and grants time for payment of deficient court fee under S.194, the other party cannot attack the order on ground that it takes away his valuable right to plead the bar of limitation." 14. In 2005 (6) SCC 344 (Salem Bar Association Vs. Union of India) the Apex Court dealt with the amendment made to Section 148 CPC. In that context, the Honble Supreme Court held as follows:- "41. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the court has no inherent power to extent the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if that act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the court for performance of an act prescribed or allowed by the court. 42. In Mahanth Ram Das V. Ganga Das ( AIR 1961 SC 882 ) this court considered a case where an order was passed by the Court that if the court fee was not paid by a particular day,t he suit shall stand dismissed. It was a self operating order leading to dismissal of the suit. The partys application filed under Sections 148 and 151 of the Code for extension of time was dismissed. Allowing the appeal, it was observed: "How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed. These orders turn out often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the court was powerless to extend it. Such orders are not like the law of Medes and the Persians. 43. There can be many cases where non grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the court would have inherent power to extent time beyond 30 days." 15. In AIR 1994 Kerala, 405 (v.O.Devassy Vs. Pariyar Credits) a learned Judge of the Kerala High Court while dealing with the powers of Section 149 CPC held as follows:- "S.194, CPC empowers the court to allow any person by whom court fee is payable to pay the whole or part, as the case may be, of such court fee. 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 paid in the first instance. S.149 has to be treated as an exception to Ss.4 and 6 of the Court fees Act 1970 and serves as a proviso to those sections by allowing the deficit to be made good within the time fixed by the court. But the power is subject to the discretion of the Court to be exercised in accordance with judicial principles and cannot be claimed as of right. If the court has received the deficit court fee and admitted the plaint or the court has impliedly extended the period, the payment of deficit shall take effect from the date of presentation of the plaint or appeal, as the case may be. If the court has received the deficit court fee and admitted the plaint or the court has impliedly extended the period, the payment of deficit shall take effect from the date of presentation of the plaint or appeal, as the case may be. The words "at any stage" in S.149 contemplate that the deficiency can be ordered to be made good even after the period of limitation after filing appeal or the suit has expired. The discretion can be exercised even in the case of a plaint without any court fee. When the court allows the plaintiff or the appellant time to pay deficit court fee in exercise of its discretion, the other party cannot attack the order on the ground that it take s away his right to plead the bar of limitation, nor can he claim to have derived a vested right by the non payment of the court fee. Under the latter part of S.149, the defective plaint or appeal memorandum is validated with retrospective effect if the deficit court fee is subsequently made up. The power to permit the party to pay the deficit court fee is not in any way affect by any bar of limitation. The Section is general in its terms and applies to all documents chargeable with court fee under the Court fees Act including plaints, appeal memorandum etc., Moreover under O.7 R.11, the Court has therefore an obligation to require the party to make good the deficiently in the case of a plaint. The discretion conferred on the court under S.149 is over and above this obligation under R.11 of O.7. In the case of an appeal the discretion under S.149 applies. The proper provision under which time may be granted or extended is S.149 and not O.7, R.11 which only states the circumstances in which the plaint shall be rejected. In other words, R.1 or O.7 is not an enabling provision, but only a disabling provision.” 16. From the above decisions it is clear that the power to permit the party to pay the deficit court fee is not in any way affected by any bar of limitation and the object of the Code is not to promote failure of justice. From the above decisions it is clear that the power to permit the party to pay the deficit court fee is not in any way affected by any bar of limitation and the object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the court would have inherent power to extent time beyond 30 days. Admittedly, the reason given for non payment of court fee at the time of filing of the Plaint is that the Stamp Papers were not available. The said fact is not disputed by the petitioner. The learned Subordinate Judge, Coimbatore has exercised the inherent powers of the Court under Section 151 CPC in admitting the I.A.No.218 of 2003 and allowing the plaintiff to pay the deficit court on 22. 2003. 17. In the result, this CRP is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs.