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2011 DIGILAW 1831 (PNJ)

Sanjokta Devi v. Satwinder Kaur

2011-09-30

AJAY K.MITTAL

body2011
JUDGMENT AJAY KUMAR MITTAL, J. 1. In this revision filed under Article 227 of the Constitution of India, the petitioner-defendant No.2 has prayed for setting aside the order dated 21.1.2011 (Annexure P-6) passed by the trial Court whereby the application filed by her for deciding preliminary issue of limitation was dismissed. 2. The case of the petitioner is that she was bonafide purchaser of suit property through valid and legal registered sale deed dated 16.11.2005 from Gurmeet Kaur (respondent No.2). On the basis of the said sale deed, mutation was sanctioned in favour of the petitioner. Therefore, the petitioner was absolute bonafide owner in possession of the suit property. Respondent No.1 filed a suit for possession claiming herself owner of the suit property by way of specific performance of agreement to sell dated 15.3.2004 on payment of balance sale consideration of Rs.32,000/-or any other amount as ordered by this Court or in the alternative suit for recovery of Rs.4,36,000/-along with interest at the rate of 12% per annum from the date of filing of the suit till realization of the decretal amount. Thereafter, the petitioner filed an application dated 1.4.2010 under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded as a party. The trial court vide order dated 19.5.2010 allowed the petitioner to be impleaded as party in the suit. The petitioner thereafter filed an application dated 18.11.2010 pleading therein that the suit of respondent No.1 was barred by limitation and that respondent No.1 had not affixed the requisite court fee. The written statement was also filed by the petitioner refuting the averments made in the suit. The trial court vide order dated 21.1.2011 dismissed the application filed by the petitioner. Hence, the present revision petition. 3. I have heard learned counsel for the parties and have perused the record. 4. Learned counsel for the petitioner submitted that the plaintiff has not affixed the proper court fee on the civil suit and the time could not be extended under Section 149 of the Code of Civil Procedure. It was further submitted that the trial court had erred in rejecting the application filed by defendant No.2-petitioner. 4. Learned counsel for the petitioner submitted that the plaintiff has not affixed the proper court fee on the civil suit and the time could not be extended under Section 149 of the Code of Civil Procedure. It was further submitted that the trial court had erred in rejecting the application filed by defendant No.2-petitioner. Reliance was placed on the judgment of the Apex Court in Mahabir Singh v. Subhash and others, 2008(1) CCC 88 (SC) and the Madras High Court in S.V. Arjunaraja v. P. Vasantha, 2006(1) RCR (Civil) 295 in support of her contentions. 5. Learned counsel for respondent No.1-plaintiff, on the other hand supported the order passed by the trial court. 6. After hearing learned counsel for the parties, I do not find any substance in the contention of learned counsel for the petitioner. 7. Section 149 of the Code of Civil Procedure reads thus:- “149. Power to make up deficiency of Court-fees.-Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, 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 if such fee had been paid in the first instance.” 8. A plain reading of the aforesaid provision shows that the court has every power to allow the plaintiff to pay the court fees in whole or in part at any stage of suit. The payment of such court fees, thereupon, shall have the force and effect of having been paid in the first instance. This is an empowering section and it enlarges the power of the court to grant time to make up deficiency of court fee in an appropriate case. The power is exercised at the discretion of the court and a party cannot claim it as a matter of right. However, the discretion is exercised where the court is satisfied that sufficient ground exists for not paying the court fee in the first instance. 9. The trial court in exercise of its discretion had allowed the plaintiff to affix the court fee. However, the discretion is exercised where the court is satisfied that sufficient ground exists for not paying the court fee in the first instance. 9. The trial court in exercise of its discretion had allowed the plaintiff to affix the court fee. Nothing was shown that the trial court had acceded its jurisdiction in doing so. The trial court while dismissing the application of defendant No.2 had observed as under:- “4. On the other hand, learned counsel for the plaintiff has argued that his suit is very much within limitation. He has submitted that it was afterwards he came to know that he has not affixed proper court fees and later on filed an application for affixing proper court fees, which was allowed by the predecessor of this Court. He has referred to Mohan Lal Jhanji Vs. Parkash Chand and others 2005(1) Local Act Reports 494, in which it was held that trial court at any stage of the suit, if finds that court fees is not proper, always pass direction to affix court fees. 5. In the ruling referred by the defendant of Madras High Court, the case was that the plaintiff in the said case had failed to make good the deficiency in the court at various instances despite the order of Court and also at the initial stage. But the present case is different from said case, as in this case, the plaintiff has led entire evidence and the case was mature for decision, when the defendants (who were exparte) had moved application for setting aside exparte proceedings and they were allowed to join the proceedings, then they had filed present application. Furthermore, in this suit, the plaintiff has himself filed the application for affixing court fees and the application was allowed by the predecessor of this court, then the plaintiff had affixed the court fees within time. Thus, the plaintiff has not violated any order, as it was in the ruling of Madras High Court referred above. Thus, said ruling is not applicable in the present case. 6. Further this court has always to take into consideration the spirit of law. As the plaintiff has remained fair throughout the proceedings, but at this stage, just due to a technical irregularity (which has been made good), the suit of the plaintiff cannot be rejected holding it to be not within limitation. 6. Further this court has always to take into consideration the spirit of law. As the plaintiff has remained fair throughout the proceedings, but at this stage, just due to a technical irregularity (which has been made good), the suit of the plaintiff cannot be rejected holding it to be not within limitation. It will be against the principles of natural justice, as the plaintiff has actually filed the suit within limitation. Under these circumstances, this court does not find any merit in the application and dismisses the same for the reasons mentioned above.” 10. The judgment of the Apex Court relied upon by the learned counsel for the petitioner in Mahabir Singh's case (supra) has no relevancy with the controversy involved herein as the same was dealing with setting aside of exparte decree under Order 9 Rule 13 of the Code of Civil Procedure. The issue before the Madras High Court in S.V. Arjunaraja's case (supra) was in relation to a case where the plaintiff had failed to affix the court fees inspite of numerous opportunities afforded by the Court and in that situation, it was held that the plaintiff was not entitled to derive any benefit from the provisions of Section 149 of the Code of Civil Procedure. Such being not the situation in the present case, the aforesaid pronouncement does not advance the case of the petitioner. 11. In view of above, there is no merit in this revision petition and the same is hereby dismissed. Petition dismissed.