Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 4759 (MAD)

P. Singaravel v. Ammani Ammal

2011-12-09

R.SUDHAKAR

body2011
Judgment :- 1. The Civil Revision Petition No.1755 of 2009 is filed challenging the order dated 27.4.2007 passed in I.A.No.56 of 2007 in A.S.No.112 of 2005 on the file of the First Additional District Judge, Salem and consequently restore the appeal in A.S.No.112 of 2005 to the file of the First Additional District Judge, Salem. 2. The Civil Revision Petition No.1756 of 2009 is filed challenging the order dated 27.4.2007 passed in I.A.No.57 of 2007 in A.S.No.66 of 2006 on the file of the First Additional District Judge, Salem and consequently restore the appeal in A.S.No.66 of 2006 to the file of the First Additional District Judge, Salem. 3. The Civil Revision Petition No.1757 of 2009 is filed challenging the order dated 27.4.2007 passed in I.A.No.58 of 2007 in A.S.No.120 of 2005 on the file of the First Additional District Judge, Salem and consequently restore the appeal in A.S.No.120 of 2005 to the file of the First Additional District Judge, Salem. 4. Thiru P.Singaravel is the plaintiff in O.S.No.46 of 1996; Tmt.Vijaya Singaravel is the plaintiff in O.S.No.50 of 1996 and O.S.No.48 of 1996. All the three specific performance suits have been filed to enforce the agreement of sale dated 13.4.1992, 11.11.1992 and 11.11.1992 respectively. On contest, the three suits O.S.N.46 of 1996, 50 of 1996 and 48 of 1996 came to be dismissed on 25.4.2005. The unsuccessful plaintiff/revision petitioner filed copy applications and on receipt of certified copies of decrees and judgments filed the appeals paying a court fee of Rs.10/-in Appeal Suit No.112 of 2005 and Rs.10/- in Appeal Suit No.120 of 2005 and nil in the case of Appeal Suit No.66 of 2006, whereas the relevant court fee payable is indicated in the detailed chart filed by the learned counsel for the revision petitioner as set out below: 5. The Appeal Suits came to be returned by the appellate court on various dates mentioned as above for re-presentation granting four weeks time. The appeals came to be re-presented subsequently and the deficit court fee was paid on 5.10.2005 in Appeal Suit No.112 of 2005; on 21.9.2006 in Appeal Suit No.66 of 2006 and on 11.11.2005 in Appeal Suit No.120 of 2005. The appeals were taken up on file on 1.12.2005, 12.10.2006 and 20.12.2005 respectively. The appeals came to be re-presented subsequently and the deficit court fee was paid on 5.10.2005 in Appeal Suit No.112 of 2005; on 21.9.2006 in Appeal Suit No.66 of 2006 and on 11.11.2005 in Appeal Suit No.120 of 2005. The appeals were taken up on file on 1.12.2005, 12.10.2006 and 20.12.2005 respectively. The delay in payment of deficit court fee is as follows:- A.S.No.112 of 2005 - 75 days A.S.No.66 of 2006 - 112 days A.S.No.120 of 2005 - 426 days 6. Thereafter, the respondents herein, the defendants in the suits filed I.A.No.56 of 2007 in A.S.No.112 of 2005; I.A.No.57 of 2007 in A.S.No.66 of 2006 and I.A.No.58 of 2007 in A.S.No.120 of 2005 under Section 151 CPC read with Section 4 of the Tamil Nadu Court Fees and Suit Valuation Act 1955 praying to reject the appeals as one not properly and validly presented. In the I.As., filed in the appeals, the main plea taken by the present respondents/defendants in the suits is that there is substantial delay in payment of deficit court fee and the revision petitioner/plaintiff did not chose to file an application under Section 149 CPC to condone the delay in payment of the proper court fee, more particularly, when the appeals were returned on the ground of deficit court fee. 7. According to the defendants, the respondents herein, the court should have ordered notice to the defendants before granting time to the revision petitioner/plaintiff for paying deficit court fee in the appeals. The procedure adopted by the court below allowing the revision petitioner/plaintiff to pay deficit court fee without an application in terms of Section 149 CPC is not in accordance with law, legal or valid. 8. The said applications came to be resisted by the revision petitioner herein, appellant before the Court below. It is, however, fairly admitted by the revision petitioner that no application in terms of Section 149 CPC has been filed to state the reason for payment of deficit court fee in all the three cases, beyond time. 9. 8. The said applications came to be resisted by the revision petitioner herein, appellant before the Court below. It is, however, fairly admitted by the revision petitioner that no application in terms of Section 149 CPC has been filed to state the reason for payment of deficit court fee in all the three cases, beyond time. 9. The Court below referring to various decisions, more particularly, to the decision of the Apex Court in Butta Singh - vs. -Union of India reported in AIR 1995 Supreme Court 1945 and the decision of a Division Bench of this Court in K.Natarajan - vs. -P.K.Rajasekaran reported in 2003(2) MLJ 305 allowed the applications and dismissed the appeals holding that the appeals have not been properly and validly presented. Challenging the same, the revision petitions have been filed by the unsuccessful plaintiff. 10. The learned counsel for the revision petitioner/plaintiff contended as follows:- (i) The appellate Court has already exercised the jurisdiction under Section 149 CPC and on payment of deficit court fee allowed the appeals to be numbered. This objection has been raised by the respondents herein at a later stage. (ii) No notice is required to be issued to the respondents herein as admittedly, the court fee was paid as per order of Court. The learned counsel relied upon a decision of the learned single Judge in S.R.Ramalingam - vs. - R.Vivekanandan and others reported in 2008(1) CTC 180 wherein this Court held as follows:- “20. The cases which are relied upon by the learned counsel for the petitioner are relating to the deficit Court-Fee not paid on the Plaint and therefore, it can be a ground for rejecting the Plaint under Order 7, Rule 11 of Code of Civil Procedure, in the absence of an Application filed under Section 149 of Code of Civil Procedure. 21. On the other hand, the rejection of the memorandum of Appeal cannot be made on the same grounds available under Order 7, Rule 11 of Code of Civil Procedure. In fact, there is a provision enabling the Appellate Court to condone the delay in filing Appeal also. Such a power is not available to the Trial Court under Order 7, of Code of Civil Procedure. In fact, there is a provision enabling the Appellate Court to condone the delay in filing Appeal also. Such a power is not available to the Trial Court under Order 7, of Code of Civil Procedure. In such circumstances, considering the fact that on the second representation of Appeal, the deficit Court-Fees has been paid and the First Appellate Court, taking into consideration that from the same common judgment another Appeal has been filed in A.S.No.26 of 2006 and in the interest of justice, has come to the conclusion that the respondents must be given an opportunity to present their Appeal. The Appellate Court has also taken note of the fact that within the time given by the Court, the Court-Fees has been paid. In these circumstances, while exercising jurisdiction under Section 115 of the Code of Civil Procedure, I am of the considered view that in the interest of justice the Appeal filed by the respondents must be taken on file, especially when another Appeal arising from the same common judgment of the Trial Court has been taken to file which was filed in the same manner, which was not objected to by the revision petitioner herein. By applying the judgment in Gnanambal v. Perumal Pillai and another, 1992 MLJ 60 , and Cheenichi @ Parikkal v. D.A.Srinivasan Chettiar, 83 LW 866 : 1970(1) MLJ 234 , I am of the considered view that the First Appellate Court has rightly rejected the Application filed by the revision petitioner and therefore, it is not proper for this Court to interfere under Section 115 of Code of Civil Procedure. In view of the same, the Revision fails and the same is dismissed. No costs.” 11. Per contra, Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the 1st respondent in CRP Nos.1755 and 1757 of 2009 and respondents1 to 4 in CRP No.1756 of 2009 submits that the Division Bench of this Court in K.Natarajan - vs. -P.K.Rajasekaran, reported in 2003(2) MLJ 305 has clearly set out the guidelines and procedures to be followed by the Civil Courts in matters relating to payment of court fee belatedly. Para 21 of the decision which is relevant to the present case reads as follows:- “21.We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:- Section 149 of Code of Civil Procedure is a Proviso to Section 4 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. The word document employed in Section 149 of Code of Civil Procedure would include Plaint also. 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). If the suit is presented on the last date of limitation affixing less Court-fee, than 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. 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. The discretion referred to in Section 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. 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 some time (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. 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. The Court should exercise its jurisdiction 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 circumstances, 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 wrongfully to harass the defendant (like willful negligence in payment Court-Fee, awaiting the result of some other litigation, expecting compromise, etc.). If the Court had exercised its discretion without issuing notice, then it is open to the defendant to file Application under Section 151 of Code of Civil Procedure for proper relief. It will be open to the defendant to file a revision under Article 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.” He also referred to para 9 of the Butta Singh case (cited supra). He submitted that the discretionary power under Section 149 CPC can be exercised by the Court after issuing notice to the affected party, the respondents herein in the facts of the present cases. The relevant portion in Para 9 of the Butta Singh Case reads as follows:- "9. .... The aid of Section 149, could be taken only when the party was not able to pay Court-fee in circumstances beyond his control or under unavoidable circumstances and the Court would be justified in an appropriate case to exercise the discretionary power under S.149, after giving due notice to the affected party. But that was not the situation in this case.... But that was not the situation in this case.... " Relying upon the above stated case, it is pleaded that the appeals have not been properly presented and since no application in terms of Section 149 CPC was filed, the appeals are not valid in law. The court below was justified in rejecting the appeals. 12. Section 149 CPC reads as follows:- “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-fee 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.” In the present cases, the court fee payable in respect of the appeals was paid beyond the period of limitation and in such circumstance, the effect of belated payment has to be considered. 13. The Division Bench of this Court in 2003(2) MLJ 305 (cited supra), while laying down the procedure for exercise of discretion by Courts in granting time to pay deficit court fee, when paid beyond the prescribed period, has clearly held that notice should be given to the defendants so as to consider their objection, if the court fee is not paid in time. The present case does not fall within the exceptions specified. The Division Bench holds that the discretion under Section 149 CPC has to be exercised in accordance with the principles of law. The Division Bench also held that in a case where time granted for payment of deficit court fee falls within the period of limitation, the defendants need not be heard. It is not the case here. 14. In the present case, as could be seen from the tabular chart as above, the deficit court fee was not paid in time (i.e.) within the period of limitation. The delay in payment of Court Fee has been set out in para 5 of this order and it is not disputed. Therefore, the need to hear the defendants becomes a necessity as per law. The delay in payment of Court Fee has been set out in para 5 of this order and it is not disputed. Therefore, the need to hear the defendants becomes a necessity as per law. Therefore, the objection made by the respondents herein that the appeals were defective at the time of filing and the delay in paying court fees render the appeals bad at its inception is justified. The leaned single Judge in his decision reported in 2008(1) CTC 180 (cited supra) justified the discretion taking note of the fact that a connected appeal was already filed and pending. The facts in that case is different from the present cases. 15. Further, in these cases, the court fee paid in two cases is only Rs.10/-each whereas the actual amount is huge. In one case, no court fee was paid. It is not substantial payment to plead bona fide. The Court fee was paid belatedly and therefore, the action of the revision petitioner/plaintiff does not appear to be bona fide. 16. The specific direction issued by the Division Bench of this Court in K.Natarajans case (cited supra) and the decision in Butta Singh case (cited supra) which clearly held that the court is entitled to exercise the discretionary power under Section 149 CPC after giving notice to the affected party will apply to the facts of the present cases. It also gives the affected party (i.e.) the defendants, a right to challenge such a wrongful exercise of discretion, particularly, if notice is not given. 17. In the case before the Apex Court, the objection with regard to payment of court fee was in an appeal under Section 54 of the Land Acquisition Act as in the present case. In view of the decisions of the Division Bench of this Court as well as the Apex Court, which clearly mandates notice to the defendant in a case of admitted delay in payment of deficit court fee even at the appellate stage, if it is not paid within a period of limitation, the court below was justified in allowing the applications filed by the respondents herein. This Court finds no good reason to interfere with the judicious order which is in accordance with the law laid down by the Division Bench decision of this Court as well as the Apex Court decision referred to above. This Court finds no good reason to interfere with the judicious order which is in accordance with the law laid down by the Division Bench decision of this Court as well as the Apex Court decision referred to above. There is no illegality or infirmity in the order. 18. In the result, finding no merit, all the Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.