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2007 DIGILAW 424 (MAD)

S. R. Ramalingam v. R. Vivekanandan & Another

2007-02-02

R.BANUMATHI

body2007
Judgment :- These revisions are directed against the dismissal of applications -to implead the other Defendants in the stay application and dismissal of the application filed under Or.41 R.30 CPC, to reject the appeal A.S.No.26/2006. 2. Brief facts which led to these revisions are as follows:- 2. 1. Petitioner/Plaintiff filed O.S.No.380/2001 for declaration that the suit A Schedule Property is a common property belonging to the Plaintiff and the Defendants, intended for the user of the same for having access to their respective properties and also for Permanent Injunction restraining the Defendants 1 and 2 from interfering with the Plaintiffs user of suit A Schedule Property and other reliefs. Suit was decreed on 30.08.2005. Aggrieved over the Judgment and Decree, Defendants 1 and 2 have filed A.S.No.26 of 2006 before the I Additional Sub Court, Erode. 2. 2. Along with the appeal, Defendants 1 and 2 filed I.A.No.252/2006 seeking stay of operation of Decree in O.S.No.380/2001. In the stay application, only Plaintiff was shown as Respondents. Though other Defendants 3 to 15 were made Respondents in the appeal, they were not shown as Respondents in the stay application. Plaintiff filed I.A.No.342/2006 under Or.1 R.10(2) CPC to implead other Defendants 3 to 15 as Respondents 2 to 14 in the stay application I.A.No.252/2006. 3. Memorandum of Appeal was filed on the last date of limitation i.e. 30.01.2006 with Court Fee of Rs.10/-. No application was filed to make up deficiency of Court Fees nor filed application under Sec.149 CPC. The appeal memo was returned on 02.03.2006 and represented on 07.03.2006 along with deficit Court Fees, stating that no application was filed under Sec. 149 CPC and that the Court has not extended time for payment of Court Fee and hence, the Memorandum of Appeal is liable to be rejected. Plaintiff filed I.A.No.343/2006 to reject Memorandum of Appeal. Aggrieved by the dismissal of the said applications, this Revision Petition is filed. 3. Heard both. 4. The learned Counsel for the Petitioner contended that in the absence of an Order granting time under Sec.149 CPC and deficit Court Fees paid after the period of limitation, the appeal ought to have been rejected. Aggrieved by the dismissal of the said applications, this Revision Petition is filed. 3. Heard both. 4. The learned Counsel for the Petitioner contended that in the absence of an Order granting time under Sec.149 CPC and deficit Court Fees paid after the period of limitation, the appeal ought to have been rejected. The learned Counsel for the Defendants 1 and 2 would contend that since the Court Fees has been paid after the period of limitation and the Court has granted time and the appellants have paid the Court Fee within the time fixed by the Court, the appeal was rightly admitted. 5. Appeal was presented on 30.01.2006 – last date of limitation. Appeal memo was returned on 02.03.2006 for payment of deficit Court Fee and rectification of other defects. Appeal memo was represented on 07.03.2006, making good the deficit Court Fee. No formal application was filed under Section 149 CPC for extension of time for payment of deficit Court Fee. The learned Counsel for the Revision Petitioner contended that the appeal memo ought to have been rejected since the Court Fee has been paid after the period of limitation and without any formal application under Section 149 CPC. When the Memorandum of Appeal was returned on 02.03.2006, Court has extended time for payment of Court Fees and thereby, the Court has extended time for payment. Under Section 149 CPC, Court has every power to allow the Plaintiff to pay the Court Fees in whole or in part, at any stage, and on payment of such Court Fees, it will have the same force and effect as if such fee had been paid in the first instance. By returning the Memorandum of Appeal, Court has granted time for payment of Court Fee and therefore, the Revision Petitioner cannot have any grievance. 6. Placing reliance upon 2005 (5) CTC 401 [S.V.Arjunaraja Vs. P.Vasantha], it was contended that Court had admitted the appeal without the Plaintiff seeking time to pay Court Fees and that extension itself should be held illegal and Memorandum of Appeal ought to be rejected. Inspite of return of plaint number of times for payment of deficit Court Fees, Plaintiff has not complied with the Order. Only after lapse of six months, deficit was made up and suit was numbered. Inspite of return of plaint number of times for payment of deficit Court Fees, Plaintiff has not complied with the Order. Only after lapse of six months, deficit was made up and suit was numbered. In that factual situation obtaining thereon, the learned Judge has held that in the absence of specific application invoking Section 149 CPC and in the absence of any Order passed by the Court granting time for payment or enlargement, the suit is liable to be rejected. The said observation cannot be imported to the case in hand. 7. In AIR 1993 SC 1241 [Mohammad Mahibulla and another Vs.Seth Chaman Lal (dead) by L.Rs and others], the Supreme Court has held as follows:- "5. .... when the lower Appellate Court came to hold that the Memorandum of Appeal had not been sufficiently stamped, an opportunity should have been given by the Court to the appellant to make good the balance Court-fee within a time to be indicated and if there was failure to comply with the direction of the Court the Memorandum of Appeal could have been dismissed. This opportunity having not been given, we are of the view that the dismissal of the appeal was not appropriate. ..." 8. In AIR 1995 SC 1945 [Buta Singh Vs.Union of India], in a case arising under Sec.149 CPC, the Supreme Court while pointing out the scope of Sec.149, ruled thus: "Therefore, the Court is required to exercise its judicial discretion keeping the facts and circumstances in each case and not automatically for mere asking that indulgence be shown to the party to make good the deficit Court-fee. In the later event, it is not the exercise of the judicial discretion but showing undue indulgence". 9. Dealing with Section 149 CPC – deficiency in payment of Court Fee and the power of the Court to extend time, in the decision 2003 (2) MLJ 305 [K.Natarajan Vs. P.K.Rajasekaran], the Division Bench of this Court has laid down the procedure to be followed. 10. In Arjunarajas case cited supra, Justice M.Thanikachalam in paragraph 20 has held as follows:- "20. ... P.K.Rajasekaran], the Division Bench of this Court has laid down the procedure to be followed. 10. In Arjunarajas case cited supra, Justice M.Thanikachalam in paragraph 20 has held as follows:- "20. ... For non-payment of Court Fees, generally, one occasion alone, time should be given and if the Plaintiff is unable to pay the required Court Fees, even after the first return, then, it is incumbent upon him to make an application and seek time and the Court, satisfying itself, should grant time for payment of the deficit Court Fees. The Court should not extend the time, mechanically, for payment of deficit Court Fees. After giving an opportunity, if the Plaintiff has not paid the Court Fees, as observed by the Apex Court, if there was failure to comply with the direction of the Court, the memorandum of the appeal should be dismissed, ..." In this case, one occasion was granted to the appellants to pay the deficit Court Fee. It cannot be said that the Court has extended time mechanically for payment of deficit Court Fee. Memorandum of Appeal cannot be rejected for non-payment of deficit Court Fee within the period of limitation. 11. The contention raised regarding non-impleading of Defendants 3 to 15 as Respondents in I.A.No.252/2006 is more technical than substantial. Admittedly in the suit O.S.No.380/2001, Defendants 3 to 15 were set exparte. Though the pathway is declared to be common, the other Defendants 3 to 15, having remained exparte in the suit stage, have no substantial case to putforth in the stay application. The contention of the Plaintiff that other Defendants 3 to 15 are necessary parties to the stay application is purely technical and was rightly negatived by the I Appellate Court. The impugned Orders do not suffer from any error of law warranting interference. 12. In the result, both the Revision Petitions are dismissed. No costs. Consequently, MP No.1 of 2006 is also dismissed.