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2011 DIGILAW 1181 (MAD)

S. R. Jayaraman v. C. Jothirlingam

2011-03-03

R.S.RAMANATHAN

body2011
Judgment :- 1. The revision petitioners are the defendants 2 and 3 in O.S.No.113 of 2009, on the file of the Additional District Judge, Fast Track Court No.II, Salem. They filed an application in I.A.No.996 of 2009, to reject the plaint, for non-payment of the Court fee within the time granted by this Court vide order dated 08.01.2008, passed in C.R.P.No.(NPD)1399 of 2006. That application was dismissed and as against the same C.R.P.(PD)No.3861 of 2009, was filed. 2. Originally, the respondents filed a suit against the revision petitioners and one another person by name Mr.J.Ajit Jain, for declaration that the registered sale deed dated 14.11.2005, executed by the first defendant, in favour of the revision petitioners is void ab initio and for consequential injunction. That suit was numbered as O.S.No.1135 of 2005, on the file of the First Additional District Munsif, Salem. 3. As the respondents/plaintiffs valued the suit under Section 25 (d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 ( hereinafter referred to as the said 'Act') at Rs.5,000/- and paid the Court fee of Rs.375.50, the revision petitioners filed an application in I.A.No.1981 of 2005 under Order 7, Rule 11 of Code of Civil Procedure ( in short 'C.P.C.') to reject the plaint, on the ground that the suit filed was under valued and the respondents ought to have valued the suit under Section 40 of the said Act and pay the Court fee on the value of the subject matter of the suit, which was mentioned as Rs.30,00,000/-. That application was allowed and the respondents were directed to pay the Court fee on Rs.30,00,000/- as per the Section 40 of the said Act and that was challenged by the respondents in C.R.P.(NPD)No.1399 of 2009. This Court allowed the said revision petition filed by the respondents, with a direction, directing the Court below to return the plaint to the respondents/plaintiffs for re-presentation, after paying the Court fee and granted two months time for re-presentation before the appropriate forum for paying necessary Court fee. 4. This Court allowed the said revision petition filed by the respondents, with a direction, directing the Court below to return the plaint to the respondents/plaintiffs for re-presentation, after paying the Court fee and granted two months time for re-presentation before the appropriate forum for paying necessary Court fee. 4. Thereafter, the respondents filed a petition under Order 33, Rule 1 of C.P.C. seeking permission of the Court below to permit the respondents/ plaintiffs to pursue the suit as an indigent person stating that they were not able to pay the requisite Court fee and that permission was granted by the Court below permitting the respondents/plaintiffs to sue as indigent persons. After various re-presentation, the respondents/plaintiffs re-presented the plaint along with the requisite Court fee and also filed an application to condone the delay of 247 days in re-presenting the petition filed under Order 33, Rule 1 of C.P.C. and as the respondents/ plaintiffs paid the Court fee, the Court below directed the Office to number the suit and the suit was numbered as O.S.No.113 of 2009. At that point of time, the revision petitioners filed I.A.No.996 of 2009, under Order 7, Rule 11 of C.P.C., to reject the plaint for non-payment of the Court fee within time granted by this Court in C.R.P.(NPD)No.1399 of 2006. 5. It is contended by Mr.D.Shivakumaran, the learned counsel appearing for the revision petitioners that as per the order passed in C.R.P.(NPD)No.1399 of 2006, two months time was given to the respondents/ plaintiffs to re-present the plaint for valuing the suit as per Section 40 of the said Act and the Court below was directed to return the plaint to the respondents within a period of one week time from the date of receipt of a copy of this order. As directed by this Court, the plaint was returned by the I Additional Judge, Fast Track Court No.1, Salem, to the respondents on 30.01.2008 to comply with the order passed in C.R.P.(NPD)No.1399 of 2006 and granted two months time. 6. Thereafter, the respondents/plaintiffs filed an application under Order 33, Rule 1 of C.P.C., seeking permission of the Court to prosecute the suit filed by them as indigent persons and after gaining time, they finally paid the Court fee and re-presented the plaint and without notice to the revision petitioners, the Court below condoned the delay in paying the Court fee and numbered the suit. The Court below ought not to have entertained the application filed by the respondents under Order 33, Rule 1 of C.P.C. and the Court below ought not to have condoned the delay in re-presenting the said petition filed under Order 33, Rule 1 of C.P.C. In any event, the Court below ought not to have permitted the respondents/ plaintiffs to pay the Court fee, after the time granted by this Court in C.R.P.(NPD)No.1399 of 2006. The learned counsel appearing for the revision petitioners therefore submitted that the order of the Court below is liable to be set aside. 7. On the other hand, Mr.S.V.Jayaraman, the Learned Senior Counsel appearing for the respondents submitted that originally the suit was filed for valuing the suit property under Section 25 of the said Act, after the order was passed by this Court in C.R.P (NPD)No.1399 of 2006, the respondents have to value the suit under Section 40 of the said Act and the value of the suit property comes to Rs.30,00,000/-. and the respondents were not able to pay the Court fee within the time fixed from the date of return of the plaint by the Court below as per the order of this Court in C.R.P(NPD) No.1399 of 2006, they filed application under Order 33, Rule 1 of C.P.C., seeking permission of the Court below to continue the proceedings as indigent persons and that is permissible in law and it is also held so in the judgments reported in A.I.R. ( Madras (1929) Madras 828 in the case of ( Subbarao Vs. Venkatarathinam and others) and (1933) Madras 498 in the case of ( Bava Sahib Miyan Vs. Abdul Ghani Sahib and others) and the petitions were returned for complying with certain directions and in the interregnum, the respondents were able to pay the Court fee and therefore, the petition was re-presented along with the petition to condone the delay in re-presentation. Therefore, there is no question of non-payment of the Court fee after the time prescribed by the Court below and considering all these aspects, the Court below rightly rejected the application filed by the revision petitioners. 8. Heard the learned counsel on either side. 9. Therefore, there is no question of non-payment of the Court fee after the time prescribed by the Court below and considering all these aspects, the Court below rightly rejected the application filed by the revision petitioners. 8. Heard the learned counsel on either side. 9. It is admitted that this Court vide order 08.01.2008, passedin C.R.P(NPD)No.1399 of 2006, directed the respondents to pay the Court fee under Section 40 of the said Act and granted two months time to pay the same. It is seen from the endorsement of the Court below that the plaint was returned to the respondents on 08.01.2008, with a direction to pay the Court fee within a period of two months. Thereafter, on 29.02.2008, the respondents/plaintiffs filed an application under Order 33, Rule 1 of C.P.C., seeking permission of the Court below to pay the Court fee. That petition was returned for compliance of certain defects and by order dated 20.03.2009, except the minor plaintiffs, all other plaintiffs were directed to be present before the Court for recording sworn statement. Thereafter, the petition was re-presented and finally the respondents/plaintiffs made an endorsement agreeing to pay the Court fee and sought permission of the Court to permit the respondents/ plaintiffs to pay the Court fee and that was accepted and the plaint numbered. 10. Therefore, it is seen from the sequence of events that immediately after the plaint was returned, the respondents re-presented the plaint along with the application filed under Order 33, Rule 1 of C.P.C. within time frame fixed by this Court in C.R.P(NPD) No.1399 of 2006, and that petition was returned and finally, before any order was passed in that petition, the respondents/ plaintiffs offered to pay the Court fee and that was accepted. As per the judgment reported in A.I.R. ( Madras (1929) Madras 828 (supra), a petition filed under Order 33 Rule 1, can be filed to pursue the plaint already filed when it was found that the Court fee paid originally was not proper. Therefore, the respondent/plaintiffs are entitled to file the petition under Order 33, Rule 1 of C.P.C., seeking permission of the Court to permit them to continue the proceedings as indigent persons and while dealing with that application filed under Order 33, Rule 1 of C.P.C., before any order was passed in that application, the respondents/plaintiffs paid the necessary Court fee and that was accepted. Hence, it cannot be stated that the Court below acted against the orders passed by this Court in C.R.P(NPD)No.1399 of 2006, and erred in permitting the respondents/plaintiffs to pay the Court fee, after the period granted by this Court. 11. It was held in the judgment reported in A.I.R. ( Madras (1929) Madras 828 (supra) that even in a suit filed and numbered, the plaintiffs are entitled to file an application under Order 33, Rule 1 of C.P.C., to continue proceedings when the Court found that the Stamp duty paid already was inadequate. Therefore, the respondents are entitled to file the application under Order 33, Rule of C.P.C. As per the provisions of Order 33, Rule 1 of C.P.C., when an application filed is rejected by the Court, refusing to grant permission to the plaintiff to sue as indigent person, sufficient time has to be given to the plaintiff. 12. Therefore, even after the dismissal of the application filed under Order 33, Rule 1 of C.P.C., the Court has to give further time to the plaintiffs to pay the Court fee and in this case, that situation has not arisen and before any order is passed under Order 33, Rule 1 of C.P.C., the respondents/plaintiffs paid the Court fee and therefore, it was rightly accepted by the Court below and the suit was numbered. Hence, I do not find any infirmity in the order of the Court below. Further, under Order 7, Rule 11 of C.P.C., the plaint can be rejected when the relief claimed is under valued and the plaintiff on being required by the Court to pay the requisite sum within a time frame to be fixed by this Court fails to do so. 13. As stated supra, in this case, though the time famed was fixed by this Court in C.R.P(NPD)No.1399 of 2006, the respondents filed application under Order 33, Rule 1 of C.P.C., seeking permission of the Court to continue the proceedings as informa pauperis and in that application before passing any order, the Stamp duty and the Court fee was paid. Hence, it cannot be stated that there is non compliance of Order 7, Rule 11 of C.P.C., which warrants dismissal or the rejection of the plaint. Hence, I do not find any reason to interfere with the reasoned order passed by the Court below. Therefore, the petition in C.R.P.No.3861 of 2009 is dismissed. 14. Hence, it cannot be stated that there is non compliance of Order 7, Rule 11 of C.P.C., which warrants dismissal or the rejection of the plaint. Hence, I do not find any reason to interfere with the reasoned order passed by the Court below. Therefore, the petition in C.R.P.No.3861 of 2009 is dismissed. 14. Insofar as the petition in C.R.P.No.3862 of 2009, is concerned, it was filed against the order passed in unnumbered interlocutory application filed by the respondents/plaintiffs seeking permission of the Court to sue as indigent persons. Along with the application filed under Order 33, Rule 1 of C.P.C., the respondents/plaintiffs have also filed application seeking permission of the Court to recognize the Power Agent to continue the suit and that was granted and that order is challenged in this revision petition. 15. It was contended by the learned counsel appearing for the revision petitioners that as per the Power given by the Principals in favour of the Power Agent, no power was given to the Agent to file the suit and the power was given to take proceedings in respect of sale of the property and the suit was filed for declaration of released deed and no specific power was given to file such suit. Therefore, the Power Agent is not entitled to continue the proceedings. 16. It is seen from the plaint originally filed before the District Munsif Court, Salem, that the respondents/plaintiffs were represented by the Power Agent. In the Revision Petition before this Court, the plaintiffs were permitted to file the Revision Petition through their Power Agent. Therefore, the Power Agent has filed an application to continue the application filed under Order 33, Rule 1, which is only a formal application. Further, the Power given by the Principals to the Power Agent, it was stated that Power is given to act on behalf of the Principal in respect of any matter, which was not stated in the Power and such residuary power was given to the Agent to act on behalf of the Principal. 17. Therefore, as per the residuary power given by the principal, the Agent is entitled to file the suit in respect of the permission given in the Power and therefore, that cannot be challenged by the revision petitioner. 18. Hence, I do not find any infirmity in permitting the respondents to prosecute their case through their Power Agent. 17. Therefore, as per the residuary power given by the principal, the Agent is entitled to file the suit in respect of the permission given in the Power and therefore, that cannot be challenged by the revision petitioner. 18. Hence, I do not find any infirmity in permitting the respondents to prosecute their case through their Power Agent. Therefore, C.R.P.No.1362 of 2009 is also dismissed. Consequently, connected Civil Miscellaneous Petitions is also closed. No costs.