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2009 DIGILAW 57 (MAD)

M. v. Dhanasekaran VS K. Kovindaraju

2009-01-07

G.RAJASURIA

body2009
Judgment : This civil revision petition is filed against the order dated 13. 2008 passed in I.A.No.231 of 2001 by the Additional Subordinate Judge, Salem. Anim adverting upon the order dated 13. 2008 passed in I.A.No.231 of 2001 by the Additional Subordinate Judge, Salem. 2. A resume of facts, which are absolute necessary and germane for the disposal of this civil revision petition would run thus: The respondent, as plaintiff, filed the suit O.S.No.380 of 2001 in the Court of Additional Subordinate Judge, on 24. 2001. Whereas, admittedly the limitation period for filing the suit was uptil 30.5.2001. Along with the plaint itself an I.A. was filed so as to get extended the time to pay the deficit Court fee. Six weeks time was granted by the order dated 30.4.2001, which expired by 6. 2001. Another application was filed on 6. 2001 for getting extended the time and thereby, a period of six more weeks was got extended for paying the deficit Court fee. Thereafter, on compliance, the plaint was numbered. The petitioner/first defendant filed I.A.No.231 of 2006 for rejecting the plaint. However, the trial Court dismissed the said application. Aggrieved by the said order, this civil revision petition is focussed on various grounds. 2. The learned counsel for the petitioner/first defendant would develop his argument by placing reliance on the grounds of revision to the effect that on both the occasions, when the extension of time was granted for payment of deficit Court fee, the Court ought to have ordered notice to the petitioner/first defendant and after hearing him alone, the granting of extension of time should have been considered; but that was not done so. Accordingly, he prays for setting aside the order of the lower Court and for rejecting of the plaint. 3. The learned counsel for the petitioner/first defendant also would submit that no application was filed under Section 149 of C.P.C. He would place reliance on the decision of the Division Bench of this Court reported in (2003) 2 Mlj 305 -K.Natarajan Vs. P.K.Rajasekaran, an excerpt from it would run thus:- "21.We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:- (1)Sec.149 of Code of Civil Procedure is a proviso to Sec.4 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. P.K.Rajasekaran, an excerpt from it would run thus:- "21.We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:- (1)Sec.149 of Code of Civil Procedure is a proviso to Sec.4 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. (2)The word document employed in Sec.149 of Code of Civil Procedure would include plaint also. (3)Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third day (excluding the date of presentation so also the intervening holidays). (4)If the suit is presented on the last date of limitation affixing less Court-fee, then the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court-fee. (5)In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court-fee, shall order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite Court-fee and the Court is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike. (6)The discretion referred to in Sec.149 of Code of Civil Procedure is a judicial discretion and the same has to be exercised in accordance with the well established principles of law. (7)But however, in cases where the time granted to pay the deficit Court-fee falls within the period of limitation, the defendant need not be heard. (7A)In case where the plaint is presented well within the period of limitation with deficit Court-fee and the Court returns the plaint to rectify the defect giving sometime ( 2 or 3 weeks), which also falls within the period of limitation, but the plaint is re-presented paying deficit Court-fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial Court-fee(not almost entirety) at the first instance, before condoning the delay in paying the deficit Court-fee. (8)In cases where part of the time granted to pay the deficit Court-fee falls outside the period of limitation and the deficit Court-fee is paid within the time of limitation ( i.e. The plaint is re-presented with requisite Court-fee), the Court need not wait for the objections of the defendant and the plaint can be straight away numbered. (9)The Court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court Fee Act or where he could not pay the required Court-fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial Court-fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in. But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying Court-fee, awaiting the result of some other litigation, expecting compromise, etc.) (1)If the Court had exercised its discretion without issuing notice, then it is open to the defendant to file application under Sec.151 of Code of Civil Procedure for proper relief. It will be open to the defendant to file a revision under Art.227 of Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law(as laid down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law." As such, the learned counsel for the petitioner/first defendant would pray for allowing the civil revision petition. 4. Whereas the learned counsel for the respondent/plaintiff would submit that earlier the Court granted extension of time by six weeks and even though the said period of six weeks exceeded the period of limitation for filing the suit, no notice was contemplated; however, in respect of the second application for extension of time also no notice was given, but in the facts and circumstances of the case, no prejudice had been caused to the petitioner/first defendant. 5. 5. A bare perusal of the judgement of the Division Bench of this Court would make the point amply clear that the trial Court should not have numbered the suit, without ordering notice in both the I.As. Paragraph 21(7) of the Division Benchs judgement, would clearly indicate and demonstrate that if the extension of time that would be granted by the lower Court exceeds the period of limitation, certainly notice is contemplated. It is therefore crystal clear that in both the I.As, notice was contemplated, but unfortunately, the trial Court had not issued the same. Hence, in this factual circumstances, I am of the considered opinion that the defendant should be given due opportunity of put forth his contentions in accordance with law. It is ex facie and prima facie clear that the respondent/plaintiff as well as the lower Court, without adhering to the decision of the Division Bench of this Court, referred to supra, dealt with the matter. Hence, the trial Court is directed to take off the suit from the file and order notice in both the I.As to the petitioner/first defendant. Whereupon, the petitioner/first defendant should be allowed to file counters and after giving due opportunity of hearing to both sides, the I.As shall be disposed of purely on merits. Depending upon the order that would be passed in the IAs, the suit could be renumbered or otherwise. The trial Court shall dispose of the matter within two months from the date of ordering notice and both the parties shall extend their full co-operation for the early disposal of the matter. Accordingly, the civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.