JUDGMENT : J.B. PARDIWALA, J. 1. This First Appeal under Section 96 of the Code of Civil Procedure, 1908 is at the instance of the original plaintiff and is directed against the judgment and order passed by the additional Senior Civil Judge, Morbi dated 26th July, 2017 below Exhibit : 23 in Special Civil Suit No. 23 of 2016. 2. The facts giving rise to this First Appeal may be summarised as under: 2.1 The appellant herein - original plaintiff filed a special civil suit against the respondent herein - original defendant for recovery of the outstanding amount to the tune of Rs. 11,26,104/- with interest. The relief prayed for in the special civil suit filed by the plaintiff is as under: "1. The plaintiff has right to claim outstanding amount Rs. 11,26,104/- as per the various goods purchased by the defendants, so plaintiff urge before the Hon'ble Court to pass an order and decree against defendant to pay the outstanding amount with interest. 2. On adjudication of right to receive the amount which was paid as per the invoice and same entitled to receive from the defendant at 12% interest from May, 2013 till the date of payment. 3. The costs of this suit be awarded to plaintiff." 2.2 The suit came to be filed on 19th April, 2016. On the very same day and date, the plaintiff preferred an application under Section 149 of the C.P.C. for grant of time for payment of the requisite court fees. The application is extracted under: "Before the Hon'ble Principal Senior Civil Judge at Morbi. Special Civil Suit No. 23/2016. The above named plaintiff most respectfully submit that: We have filed Special Civil Suit for recovery of money and hence we have to produce court fee stamp of Rs. 26,350.00, but due to unavoidable reasons, we could not produce the same. Hence, we request you to grant 30 days time for production of Court Fees Stamp Paper. Ravani Ceramics sd/- Ravani Ceramics Wankaner." Place : Morbi. Date : 19/04/2016. 26,350.00, but due to unavoidable reasons, we could not produce the same. Hence, we request you to grant 30 days time for production of Court Fees Stamp Paper. Ravani Ceramics sd/- Ravani Ceramics Wankaner." Place : Morbi. Date : 19/04/2016. 2.3 The Civil Court on the aforenoted application passed an order which reads as under: "15 days time granted in the interest of justice." 2.4 It appears that although time was granted to the plaintiff herein for payment of the requisite court fees, yet the court fees was not paid and in such circumstances, the defendant preferred an application Exhibit : 13 to dismiss the suit. The Trial Court treated the application Exhibit : 13 filed by the defendant to be one for rejection of plaint under the provisions of Order 7 Rule 11(c) of the C.P.C. 2.5 On 19th July, 2017, the plaintiff herein filed his reply Exhibit : 14 to the application filed by the defendant Exhibit : 13 for dismissing the suit for non-payment of the court fees. The reply of the plaintiff Exhibit : 14 is extracted hereunder: "Subject: Objections against the application filed by the defendant to reject the suit in case of non-payment of required court fees. It is submitted by the Advocate for the plaintiff to consider the objections against the application filed by the defendant to reject the suit in case of non-payment of Court Fees. (1) Plaintiff has filed the suit to recover the dues of Rs. 11,26,104/- from the respondent. In this case, it is required to pay Court Fees of Rs. 26,350/-. (2) In this case, plaintiff has not paid the Court fees of Rs. 26,350/- due to bona-fide mistake. Plaintiff had no intention not to pay Court Fees or to misuse the judicial process. Today, plaintiff has filed an application to grant permission to produce the Court Fee Stamp of Rs. 26,350/-. (3) It is not true that plaintiff has falsely obtained the Order by falsely filing the suit within the limitation period, and by using vague words because, plaintiff was not able to file the suit due to not having the Court Fees. In this case, plaintiff has failed to produce the Court Fee Stamps due to bona-fide mistake. (4) In this case, if the suit is rejected due to non-payment of court fee stamp due to bona-fide mistake, it will cause grave damage to the plaintiff. In this case, plaintiff has failed to produce the Court Fee Stamps due to bona-fide mistake. (4) In this case, if the suit is rejected due to non-payment of court fee stamp due to bona-fide mistake, it will cause grave damage to the plaintiff. In this case, defendant has filed the reply and issues have been framed. At present, this case is on the stage of evidence by the plaintiff. In this case, defendant has an opportunity to cross-examine the plaintiff and to produce the evidence. Under such circumstances, if the suit is decided on merits, it will not cause any harm to the defendant but, will serve the purpose of justice. (5) Looking to the particular facts of this case, it is prayed to reject the application filed by the defendant to reject the suit due to non-payment of stipulated Court Fees." 2.6 On the same day, the plaintiff preferred an application Exhibit : 15 seeking permission to pay the court fees of the amount of Rs. 26,350/-. The application Exhibit : 15 is extracted hereunder: "Subject: Application to obtain permission to deposit necessary Court Fee. Advocate for the plaintiff humbly submits as follow: (1) The plaintiff has filed the suit to recover the dues of Rs. 11,26,104/- from the defendant. In this case, it is required to pay Court Fee of Rs. 26,350/-. (2) In this case, Court Fee Stamp of Rs. 26,350/- was not produced due to bona-fide mistake. Plaintiff had no intention not to pay Court fee or to misuse the judicial process. Plaintiff has filed an application to grant permission to produce the Court Fee Stamp of Rs. 26,350/-. Today, we have brought Court Fee Stamp of Rs. 26,350/-. (3) In this case, Court-Fee-Stamps were not produced due to bona-fide mistake. (4) If the suit is rejected on the ground of non-payment of Court Fee, it will cause grave damage to the plaintiff. In this case, defendant has filed the reply and issues have been framed. At present, this case is on the stage of evidence by the plaintiff. In this case, defendant has an opportunity to cross-examine the plaintiff and to produce the evidence. Under such circumstances, if the suit is decided on merits, it will not cause any harm to the defendant but, will serve the purpose of justice. (5) This Court has jurisdiction to entertain and decide this application. In this case, defendant has an opportunity to cross-examine the plaintiff and to produce the evidence. Under such circumstances, if the suit is decided on merits, it will not cause any harm to the defendant but, will serve the purpose of justice. (5) This Court has jurisdiction to entertain and decide this application. (6) Looking to the particular facts of this case, it is prayed to pass necessary order to allow us to produce Court Fee Stamp of Rs. 26,350/-." 2.7 The Trial Court, thereafter, proceeded to decide the application Exhibit : 13 filed by the defendant. The Trial Court, by judgment and order dated 26th July, 2017, rejected the plaint of the plaintiff under the provisions of Order VII Rule 11(c) of the C.P.C. on the ground of failure to deposit the requisite court fees. The impugned order is extracted hereunder: "Order below Exh-13 The respondent of the present case has preferred the present application praying to reject the suit by stating that the plaintiff of the present case has not paid the court fees within stipulated period. In connection with the application, the Ld. Adv. Shri M.M. Busa has mainly contended on behalf of the respondent that, when the plaintiff of the present case instituted the suit on 19/04/2016, he prayed for time to supply court fee and the Court granted 15 days for the same. Thereafter, though the suit was instituted without court fees, the respondent was summoned to remain present on 18/01/2017. Thereafter, the plaintiff has not paid court fees for a long period of time i.e. one year upto 14/06/2017. Thereafter, the issues were framed after filing the reply and even after framing the issues, though the suit is at the stage of evidence, the court fee has not been paid and as the present suit is instituted without sufficient court fees and as it is against the provision of the law, therefore, the present application is preferred regarding the plaintiff's suit instituted with deficit court fees. And the submission is made thereof. On behalf of the plaintiff, the objections have been produced at Exh-14 by the Ld. Advocate against the application by stating that as the plaintiff of the present case instituted the suit to recover the amount of Rs. 11,26,104/-, the court fee of Rs. 26,350/- is to be paid in that regard and the said court fee is ready today. On behalf of the plaintiff, the objections have been produced at Exh-14 by the Ld. Advocate against the application by stating that as the plaintiff of the present case instituted the suit to recover the amount of Rs. 11,26,104/-, the court fee of Rs. 26,350/- is to be paid in that regard and the said court fee is ready today. The stamp has not been supplied due to bona fide mistake. If the suit of the plaintiff is rejected for not supplying stamp, the plaintiff has to suffer huge loss. As the respondent has a right to cross examine the plaintiff in the present case, the reply has been filed to reject the present application. Ld. Adv. Mr. A.Y. Shah on behalf of plaintiff has submitted accordingly. As per section-148 of C.P.C. it is provided that the Court has discretionary powers to grant time. Therefore, as per section-148 of C.P.C., it has been prayed to extend time period. Considering submissions made by both the parities and perusing record of the suit, it appears that it is necessary to consider the provision of Rule-11 of Order-VII of C.P.C. for its just decision. 11. Therefore, as per section-148 of C.P.C., it has been prayed to extend time period. Considering submissions made by both the parities and perusing record of the suit, it appears that it is necessary to consider the provision of Rule-11 of Order-VII of C.P.C. for its just decision. 11. Rejection of plaint: The plaint shall be rejected in following cases:- (a) where it does not disclose a cause of action (b) where the relief claimed is undervalued and plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so, (c) where the relief claimed is properly valued but the plaint is return upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so (d) where the suit appears from the statement in the plaint to be barred by any law (e) where it is not filed in duplicate (f) where the plaintiff fails to comply with the provisions of Rule-9 Provided that the time fixed by the Court for the correction of valuation or supplying of the requisite stamp papers shall not be extended unless the Court, for reason to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. Perusing record of the present suit along with the aforesaid provision, it appears that the plaintiff of the present case has instituted the present suit on 19/04/2016 and thereafter, the plaintiff has prayed on 19/04/2016 at Mark-1/1 to grant time period of thirty days for the supply of court fee stamp. It came to be allowed by granting time period of 15 days to supply court fee. Looking to the subsequent court proceeding, it appears that adjournments on 20/06/2016, then 29/09/2016, 15/11/2016, 02/12/2016, 14/12/2016, 18/01/2017, 14/02/2017, 23/03/2017, 26/04/2017, 14/06/2017, 12/07/2017 and 19/07/2017 have been granted and considering all these adjournment dates, it appears that time period of one and a half year has been passed since the plaintiffs have instituted suit on 19/04/2016 and now the suit is at the stage of issue. Considering the above proceeding of this case, the plaintiff of this case failed to supply the court fee within the period of 15 days for which he was granted adjournment. He has also not cared to supply the court fee even after the period of one and half year has elapsed. As the said fact having been brought to the notice by the defendant even thereafter, the plaintiff has not sought any adjournment or permission to supply the court fee. At the stage of argument of this present application, he has sought permission to supply the court fee by the application vide Exhibit-15. Thus, at this stage, this court desires to look into the following provisions of section-148 of C.P.C. 148. Enlargement of Time Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period, not exceeding thirty days in total, even though the period originally fixed or granted may have expired. According to the above provisions, it is provided that, if any period is fixed or granted in favour of any party for doing of any act prescribed under Civil Procedure Code, the court may extend such period even though the period originally fixed or granted may have expired. Therefore, at this stage, considering Order-VII, Rule-11 of C.P.C., it is provided that, the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp paper shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. Thus, according to this provision, the plaintiff has failed to supply the prescribed court fee stamp even though he was given sufficient time. In such circumstances. It is not found just to exercise the discretionary power in favour of Plaintiff of this case as per section-148 because, it is clearly provided in Order-VII, Rule-11 of C.P.C. that, at the first, the plaintiff of this case has to establish that there were causes of an exceptional nature for not supplying the stamp. In such circumstances. It is not found just to exercise the discretionary power in favour of Plaintiff of this case as per section-148 because, it is clearly provided in Order-VII, Rule-11 of C.P.C. that, at the first, the plaintiff of this case has to establish that there were causes of an exceptional nature for not supplying the stamp. Thus, considering the provisions of Order-VII, Rule-11 of C.P.C., the plaintiff has not mentioned any cogent reasons orally or in his suit application or in the objections vide Exhibit-14 as to why he has failed to supply the court fee stamp for one and half year. Therefore, the plaintiff is not entitled to get the benefit of any lapse or error committed by him. Hence, as discussed above, following order is passed in connection with the present application in the interest of justice. O R D E R The present application of the Defendant is hereby allowed. The Suit of the Plaintiff is rejected under Order-VII, Rule-11 of C.P.C. on account of non supplying the court fee stamp within stipulated time." 3. Being dissatisfied with the judgment, order and decree passed by the Trial Court, the appellant - original plaintiff is here before this Court with this First Appeal under Section 96 of the C.P.C. 4. Mr. Vishal C. Mehta, the learned counsel appearing for the appellant - original plaintiff vehemently submitted that the Court committed a serious error of law in rejecting the plaint under the provisions of Order VII Rule 11(c) of the C.P.C. Mr. Mehta submitted that although the plaintiff was not able to pay the requisite court fees during the period of 15 days granted by the Trial Court in exercise of its powers under Section 149 of the C.P.C., yet before deciding the application Exhibit : 13 filed by the defendant for dismissal of the suit, the plaintiff did prefer an application stating that he may be permitted to deposit the requisite court fees. According to Mr. Mehta, in such circumstances, when the plaintiff was ready and willing to deposit the entire amount of court fees, then the Trial Court should have given him an opportunity to do so rather than rejecting the plaint under Order VII Rule 11(c) of the C.P.C. Mr. According to Mr. Mehta, in such circumstances, when the plaintiff was ready and willing to deposit the entire amount of court fees, then the Trial Court should have given him an opportunity to do so rather than rejecting the plaint under Order VII Rule 11(c) of the C.P.C. Mr. Mehta submitted that even while allowing the application Exhibit : 15 filed by the defendant under Order VII Rule 11(c) of the C.P.C., the Trial Court failed to consider the objections filed by the appellant herein - original plaintiff under at Exhibit : 14. 5. Mr. Mehta submitted that even after the filing of the application Exhibit : 13 by the defendant, the Trial Court ought to have granted a reasonable period of time to the plaintiff to enable him to pay the court fees. 6. Mr. Mehta submitted that the impugned order passed by the Civil Court is quite contrary to the provisions of Section 13 of the Gujarat Court Fees Act, 2004, which inter alia constitutes for grant of 30 days period to the plaintiff from the date of the judgment to pay the court fees and in default thereof, the same can be recovered as arrears of land revenue. According to Mr. Mehta, upon perusal of Section 13 of the Act, 2004, it can be inferred that a suit can proceed to judgment even without the payment of the requisite court fees. However, the decree that the Court may pass in such suit may not be executed unless the requisite court fees is paid and is received as such by the concerned Court. 7. Mr. Mehta would submit that the act on the part of the defendant in pursuing the application Exhibit : 13 even while the plaintiff showed his willingness to deposit the court fees by preferring appropriate application Exhibit : 15 could be termed as mala fide. 8. Mr. Mehta submitted that even in the written statement Exhibit : 10 filed by the defendant, the contention as regards non-supply of the requisite stamp paper had not been taken. 9. Mr. Mehta would submit that even otherwise, the impugned judgment and order is not in accordance with the provisions of the C.P.C. and the same deserves to be quashed and set aside. 10. On the other hand, this appeal has been vehemently opposed by Mr. Kunjal Pandya, the learned counsel appearing for the respondent - original defendant. 9. Mr. Mehta would submit that even otherwise, the impugned judgment and order is not in accordance with the provisions of the C.P.C. and the same deserves to be quashed and set aside. 10. On the other hand, this appeal has been vehemently opposed by Mr. Kunjal Pandya, the learned counsel appearing for the respondent - original defendant. Mr. Pandya would submit that no error, not to speak of any error of law could be said to have been committed by the Trial Court in passing the impugned order. 11. Mr. Pandya would submit that the Trial Court thought fit to grant 15 days time to the plaintiff to pay the requisite court fees. Such time was granted by the Trial Court in exercise of its powers under Section 149 of the C.P.C. Even on completion of 15 days time period, the court fees remained unpaid. If the plaintiff wanted some more time to deposit the court fees, then he ought to have preferred an application under Section 148 of the C.P.C. for extension of time. According to Mr. Pandya, no such application under Section 148 C.P.C. was filed by the plaintiff for extension of time granted under Section 149 of the C.P.C. 12. Mr. Pandya would submit that the suit was filed on 19th April, 2016. The plaintiff showed his inclination to deposit the requisite court fees only after a period of one and half years i.e. on 19th July, 2017 by filing an application Exhibit : 15. According to Mr. Pandya, it would be within the discretion of the Trial Court whether to grant an opportunity to the plaintiff to deposit the court fees or reject the plaint under Order VII Rule 11(c) C.P.C. 13. Mr. Pandya submitted that in any case, the appellant - plaintiff could have presented a fresh plaint in respect of the same cause of action in view of the provisions of Order VII Rule 13 C.P.C. Mr. Pandya would submit that the appellant - plaintiff should be relegated to the remedy of filing a fresh plaint in accordance with the provisions of Order VII Rule 13 C.P.C. Mr. Pandya would submit that there being no merit in this First Appeal, the same be dismissed in limine. 14. Pandya would submit that the appellant - plaintiff should be relegated to the remedy of filing a fresh plaint in accordance with the provisions of Order VII Rule 13 C.P.C. Mr. Pandya would submit that there being no merit in this First Appeal, the same be dismissed in limine. 14. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Trial Court committed any error in passing the impugned judgment and order rejecting the plaint. 15. For the purpose of deciding this First Appeal, I would like to address myself on the following questions: [1] Whether the Trial Court could have rejected the plaint under Order VII Rule 11(c) of the C.P.C. having regard to the fact that the case on hand is not one of insufficient stamp, but is one in which no stamp at all was paid? To put it in other words, the case on hand is one in which there was a total non-payment of the court fees at the time when the plaint came to be rejected under Order VII Rule 11(c) C.P.C. [2] If the case is one of total non-payment of the court fees, then, in such circumstances, whether the suit can be dismissed under Section 4 of the Gujarat Court Fees Act, 2004 and whether such dismissal of the suit could be termed as rejection of plaint so as to constitute the order as a decree appealable under Section 96 of the C.P.C.? [3] What is the correct procedure that the Civil Court should adopt in a case of total non-payment of court fees and on the other hand, in which the plaint is written upon paper insufficiently stamped? 16. In my view, the defendant could not have invoked Order VII Rule 11(c) C.P.C. for the purpose of getting the plaint rejected and the Trial Court ought not have entertained such application at the instance of the defendant for the purpose of rejection of the plaint. 17. Order VII Rule 11 is extracted hereunder: "R. 11. 16. In my view, the defendant could not have invoked Order VII Rule 11(c) C.P.C. for the purpose of getting the plaint rejected and the Trial Court ought not have entertained such application at the instance of the defendant for the purpose of rejection of the plaint. 17. Order VII Rule 11 is extracted hereunder: "R. 11. Rejection of plaint The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action: (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so: (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so: (d) Where the suit appears from the statement in the plaint to be barred by any law: [(e) where it is not filed in duplicate :] [(f) where the plaintiff fails to comply with the provisions of rule 9.] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite Stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]" 18. Order VII Rule 12 prescribed for the procedure once the plaint is rejected. Order VII Rule 12 C.P.C. is extracted hereunder: "R. 12. Procedure on rejecting plaint Where a plaint is rejected, the Judge shall record an order to that effect with the reasons for such order." 19. Order VII Rule 13 provides that the rejection of plaint will not preclude presentation of a fresh plaint. Order VII Rule 13 C.P.C. is extracted hereunder: "R. 13. Where rejection of plaint does not preclude presentation of fresh plaint The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action." 20. Order VII Rule 13 C.P.C. is extracted hereunder: "R. 13. Where rejection of plaint does not preclude presentation of fresh plaint The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action." 20. At this stage, let me look into Section 4 of the Gujarat Court Fees Act, 2004. Section 4 of the Act, 2004 reads as under; "4. Fees on documents filed, etc. in courts or in public offices. No document of any of the kinds specified as chargeable in the First or Second Schedule annexed to this Act shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there has been paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document" 21. The terms of Section 4 of the Act, 2004 referred to above are quite explicit. Under this section, no document specified as chargeable with court fees under the schedules to the Court Fees Act and (a plaint is a document so specified) can be filed, exhibited or recorded or received in any Court of justice or can be received or furnished by any public officer unless proper Court - Fee indicated by the schedules is paid thereon. In whatever manner, the plaint comes before the Court, if it does not bear the court fee, which the provisions of the Court - fees Act says that it shall bear, it cannot be filed, exhibited or recorded in a Court of justice; and if by mistake or inadvertence it had been so filed, exhibited or recorded, it has no validity whatever till the proper court-fee as computed under, the relevant schedule of the Court-fees Act is paid. The Court-fee payable on a document has to be ascertained under the provisions of the Court-fees Act, at the time when the document is required to be filed, exhibited or received in a Court and if the document is not adequately stamped at the crucial date, it has no validity. 22. The Court-fee payable on a document has to be ascertained under the provisions of the Court-fees Act, at the time when the document is required to be filed, exhibited or received in a Court and if the document is not adequately stamped at the crucial date, it has no validity. 22. Therefore, in the circumstances referred to above, so far as the case on hand is concerned, the Trial Court ought to have dismissed the suit on the ground of non-payment of the court fees under Section 4 of the Act, 2004. However, despite the fact that when the plaint came before the Court concerned without bearing any court fees, as prescribed under the provisions of the Act, 2004, the same was accepted and filed as on the very same day, when the plaint came to be accepted and filed without any court fee, the appellant herein - original plaintiff preferred an application marked 1/1 under Section 149 of the C.P.C., praying for time of 30 days to pay the court fees stamp of Rs. 26,350/-. The Court granted 15 days time to the appellant - plaintiff herein to pay the court fees stamp. However, despite such time being granted, the appellant herein was not able to pay the court fee stamp of Rs. 26,350/-. In such circumstances, the next step in the process at the end of the Court should have been to dismiss the suit under Section 4 of the Act, 2004. Nevertheless, such dismissal of the suit could also have been termed as rejection of plaint. 23. The reason why I am saying so is that the provisions of Order VII Rule 11(c) C.P.C. are not applicable in the present case because the case is not one of plaint insufficiently stamped, but one of total non-payment of court fees. 24. In the aforesaid context, let me first look into a decision of this Court in the case of M.T. Emerald Sky vs. Reliance Industries Ltd. [ AIR 2007 Guj 90 ]. I may quote the relevant observations: "23. The learned counsel appearing on behalf of the original defendants has relied upon Order VIII, Rule 5, Order VIII, Rule 10, Order VIII, Rule 6(a), Order VII, Rule 11(b) and (c) and Section 149 of the Code of Civil Procedure. I may quote the relevant observations: "23. The learned counsel appearing on behalf of the original defendants has relied upon Order VIII, Rule 5, Order VIII, Rule 10, Order VIII, Rule 6(a), Order VII, Rule 11(b) and (c) and Section 149 of the Code of Civil Procedure. It is the contention on behalf of the applicants original defendants that an opportunity is to be given by the Court to the plaintiffs and/or to the defendants (in case of counterclaim) to pay the deficient Court Fees and unless and until, such an opportunity is given, the suit and/or the counterclaim, as the case may be, cannot be dismissed and only if within a stipulated extended time as directed by the Court, the Court Fees is not paid, the suit and/or the counterclaim, as the case may be, can be dismissed. The learned counsel appearing on behalf of the original plaintiffs has vehemently submitted that provisions of Order, VII Rule 11(b) and (c) would not be applicable in the facts of the present case, as in the present case it is a case of total non-payment of the Court Fees and it is not a case of deficiency in the Court Fees. According to learned counsel appearing on behalf of the plaintiffs, there can be a bona fides mistake in the payment of Court Fees and there might be shortfall and in that case, Order VII, Rule 11(b) and (c) can be attracted and not in the case of total non-payment of Court Fees. Order VII, Rule 11(b) and (c) of the Code of Civil Procedure reads as under:- Order VII, Rule 11 : Rejection of plaint:- "The plaint shall be rejected in the following cases:- (a) XXX (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court fails to do so; (d) XXX." 24. Considering the above provisions, it appears that clause "(b) of Order VII, Rule 11 would be attracted where the relief claimed is under-valued and clause" (c) would be attracted in a case where the relief claimed is properly valued but plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so. Thus, on plain reading of Order VII, Rule 11(b) and (c), the said provisions would be attracted only where the plaint is insufficiently stamped. If the plaint is insufficiently stamped then the Court can reject the plaint if the plaintiff fails to supply the requisite stamp paper within a time to be fixed by the Court. Thus, in the case of plaint insufficiently stamped, the Court is required to call upon the plaintiff to supply the requisite stamp paper within a stipulated time and even thereafter if the plaintiff fails to do so, the plaint shall be rejected. Thus, on plain reading of the aforesaid provisions, when there is a case of total non-payment of Court Fees Order VII, Rule 11(b) and (c) would not be attracted. 25. The learned advocate appearing for the applicants original defendants has then relied upon Section 149 of the Code of Civil Procedure in support of his prayer to extent the time to pay the Court Fees on counterclaim by exercising the discretion as provided under Section 149 of the Code of Civil Procedure. The learned counsel appearing on behalf of the applicants original defendants has submitted that in fact, the provisions of Order VII, Rule 11(b) and (c) are relied upon to submit that when in a case of insufficiently stamped plaint, the powers are given to the Court to grant time to the plaintiffs to pay/to supply the requisite stamp paper, the Court is also required to grant reasonable time and/or extend the time to pay the Court Fees even exercising the powers under Section 149 of the Code of Civil Procedure. At this stage, the learned counsel appearing on behalf of the original plaintiffs has submitted that as in a case of total non-payment of the Court Fees, Order VII, Rule 11(b) and (c) will not be applicable and in that case, the provisions of Section 149 of the Code of Civil Procedure may be applicable, however, in that case, it is the discretion of the Court whether in the facts and circumstances of the case, time should be extended to pay the Court Fees or not. Under the circumstances, this Court is required to consider now whether in the present facts and circumstances of the case, the discretion should be exercised in favour of the applicants-original defendants to extend the time to pay the Court Fees on the counterclaim or not. Section 149 of the Code of Civil Procedure, reads as under:- "Section 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." 26. Shri Mihir Thakor, learned Senior Advocate appearing on behalf of the applicants "original defendants has relied upon the decision of the Hon'ble Supreme Court in case of Madanlal (supra), and Mohammad Mahibulla and another ( AIR 1993 SC 1241 ) (supra). He has also relied upon two decisions of the Bombay High Court in case of Achut Ramchandra Pai and others (AIR 1914 Bom 249) (supra) and Appanna Bala Koregave (dead) through L. Rs. (supra). He has also relied upon two decisions of the Bombay High Court in case of Achut Ramchandra Pai and others (AIR 1914 Bom 249) (supra) and Appanna Bala Koregave (dead) through L. Rs. (supra). In case of Mananlal ( AIR 1971 SC 1374 ) (supra), considering Section 149 of the Code of Civil Procedure and dealing with the objections relying upon Section 4 of the Court Fees Act that the Court Fees is to be paid on presentation of the plaint and/or the appeal, the Hon'ble supreme Court in paras 12 to 14 has observed that the aforesaid section 149 of the Code of Civil Procedure mitigates the rigour of Section 4 of the Court Fees Act and it is for the Court to harmonize the provisions of both the Court fees Act and Civil Procedure Code by reading Section 149 of the Civil Procedure Code and proviso to Section 4 of the Court Fees Act and allowing the deficit to be made good within a period of time fixed by it. If the deficit is made good no possible objection can be raised on the ground of bar of limitation, as Section 149 expressly provides that the document is to have validity with retrospective effect. In case of Mahasay Ganesh Prasad Ray and Another ( AIR 1953 SC 431 ) (supra), the Hon'ble Supreme Court dealing with the submission on behalf of the defendant that by extending the time to pay the deficient Court Fees, their valuable right to plead the bar of limitation would be taken away, the Hon'ble Supreme Court has observed that the power of the High Court to allow the amendment under Section 149 of the Code of Civil Procedure is clearly one in which the plea of bar of limitation may be ignored. The contention therefore that by allowing the amendment the High Court took away the appellant's valuable right to plead the bar of limitation cannot be accepted. It is further observed that it was a matter of discretion for the High Court and by exercising such a discretion any recognized principles of law are not violated and/or by granting leave to amend, no gross injustice has been done. The Hon'ble Supreme Court has further observed that the payment of the Court Fees is a matter primarily between the Government and the plaintiff. The Hon'ble Supreme Court has further observed that the payment of the Court Fees is a matter primarily between the Government and the plaintiff. In case of Achut Ramchandra Pai and others (AIR 1914 Bom 249) (supra), the Division Bench of the Bombay High Court has observed that the concession referred to in Section 149 is not restricted to cases where there is a bona fide misunderstanding of the law as to valuation; the inference is that the legislature intended that the Court should have a free and unshackled discretion in the matter. 27. So far as discretion to be exercised while exercising the powers under Section 149 of the Code of Civil Procedure is concerned, in the case of Jagat Ram (AIR 1938 Lahore 361) (supra), the Full Bench of the Lahore Court has observed that the discretion conferred on the Court by Section 149 is normally expected to be exercised in favour of the litigant except in case of "contumacy" or positive mala fides or reasons of a similar kind and the question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the limitation Act. In case of Custodian of Evacues Property, New Delhi (AIR 1968 Delhi 183), the Delhi High Court has also observed that the discretion conferred on the Court by Section 149 is normally expected to be exercised in favour of the litigant except in case of contumacy or positive mala fides. It is also further held that for the purposes of judging whether the discretion under Section 149 should or should not be exercised in favour of the litigant, a thing shall be presumed to be done bona fide if it is done honestly, whether it is done negligently or not. In case of M/s. Maltex Malsters (P). Limited (AIR 1975 Delhi 123) (supra), the Delhi High Court has made similar observations. In case of M/s. Maltex Malsters (P). Limited (AIR 1975 Delhi 123) (supra), the Delhi High Court has made similar observations. In case of Gulam Abbas ( AIR 1975 Raj 150 ) (supra), dealing with Section 149 of the Code of Civil Procedure, the Rajasthan High Court has observed, as under:- "The discretion under Section 149 to allow Court fee to be paid at any stage being judicial has to be exercised like any other judicial discretion and cannot be exercised in favour of a party who has not acted bona fide or was not under any honest mistake or doubt and the words "bona fide" or "good faith" have to be taken in the sense contemplated by the General Clauses Act and not as under the Limitation Act and where there has been a mistake not attributable to any mala fides the Court may be justified in condoning the delay on reasonable terms and the discretion is normally expected to be exercised in favour of a litigant except in cases of contumacy or position mala fides or reasons of a similar kind".... (Para 8) "Where the Court exercises the discretion under Section 149 in favour of a party it does not thereby deprive the other party of any of the vested rights, as, such right might become vested only when either there is no application under Section 149 or when such application is filed the discretion is not exercised in favour of the party making the application, AIR 1953 SC 431 and AIR 1957 Raj 367 , Rel. on case law ref." ..... (Para 11) 28. Similar view also been taken by the Himachal Pradesh High Court in case of Dasondhi Ram and another (AIR 1966 Him Pra 66) (supra), by the Punjab and Haryana High Court in case of Gurdial Singh (AIR 1977 PandH 248) (supra) and by the J and K High Court in case of Noora Loan (AIR 1972 JandK 56) (supra). 29. Similar view also been taken by the Himachal Pradesh High Court in case of Dasondhi Ram and another (AIR 1966 Him Pra 66) (supra), by the Punjab and Haryana High Court in case of Gurdial Singh (AIR 1977 PandH 248) (supra) and by the J and K High Court in case of Noora Loan (AIR 1972 JandK 56) (supra). 29. Now, considering the aforesaid various decisions and considering Section 149 of the Code of Civil Procedure, the proposition of law emerges is that while considering the application under Section 149 of the Code of Civil Procedure, normally, the Court is required to exercise the discretion in favour of the litigant unless there are positive mala fides and by extending the time to pay the deficient Court Fees, no vested right of the either party has been taken away and the dispute with regard to Court fees is between the State Government and the concerned litigant and that when the discretion is exercised while granting the time to pay the Court Fees under Section 149 of the Code of Civil Procedure, it will relate back to the original presentation." 25. In my view, Section 4 of the Act, 2004 does not concern itself with the mode or manner in which a document comes before a Court; the terms of the sections are explicit and require that in respect of a document coming before it, a fee as prescribed must be paid. 26. In Atmaram and others vs. Singhai Kasturchand and others [ AIR 1930 Nagpur 224 ], the Court took the view that Order VII Rule 11 does not refer to a plaint which bears no stamp. Such a plaint must be rejected in accordance with the provisions of Sections 4 and 6 of the Court Fees Act. I may quot the relevant observations: "With due respect I express my opinion, that Ss. 1, 4 and 6, Court Fees Act, authorize the action; the Courts cannot receive a memorandum unless proper fee has been paid; they must, then, reject it unless some special provision in the Code directs that time should be given. I add that O. 7. R. 11, does not refer to a plaint which bears no stamp; surely such a plaint must be rejected in accordance with Ss. I add that O. 7. R. 11, does not refer to a plaint which bears no stamp; surely such a plaint must be rejected in accordance with Ss. 4 and 6, Court-fees Act, and these sections do not distinguish between a document in respect of which no fee has been paid and a document in respect of which the fee paid is insufficient." 27. At this stage, let me look into Section 149 C.P.C. Section 149 is extracted hereunder: "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." 28. It is clear from the words of the section referred to above that the document must be pending in the Court and it must be pending as a document of that nature, upon which, the fee demanded is payable under the law. In other words, if the fee demanded is that payable on a plaint in a suit, the document pending in the Court must be a plaint in the suit and no other document, otherwise the fee would not be demanded on a plaint, but on a document of some other kind and the fee, as demanded, would not be payable on a document of the other kind. 29. 29. The other matter that is clear from the words of the Section 149 C.P.C. is that once the fee is paid, the document, as a type of document upon which the fee has actually been demanded, has force and effect as if the fee had been paid in the first instance when the document was filed in the Court so that once it is conceded that under Section 149, the Court can, in cases of the present type, exercise discretion in favour of an applicant and allow him to pay the Court fee, it follows that it exercises discretion in his favour in regard to a pending plaint and no other type of document. Thus, the only document that remains with the Court is obviously a plaint of the applicant and nothing else. The question what is the effect of payment or non-payment of the fee, for which time has been allowed, is a different matter, but what is being emphasised here is that under Section 149, the application takes the shape of a plaint before the Court. 30. The rejection of a plaint is within the definition of a "decree" within the scope of Section 2(2) C.P.C. The reference to "rejection of a plaint" in that definition is not confined to rejection of a plaint under Order VII Rule 11. That is clear from the very words of Section 2(2) C.P.C. or otherwise, they would have referred to Order VII Rule 11 in it. 31. Therefore, in my opinion, whether the suit is dismissed for nonpayment of the court fee in accordance with Section 4 of the Act, 2004 or the plaint is rejected under Order VII Rule 11(c) C.P.C., the order is a decree within the scope of Section 2(2) C.P.C. and an appeal from such a decree is competent. 32. At the cost of repetition, even if it was a technical dismissal of plaint, but dismissal of a suit even so, it will be a decree and an appeal would be competent. 33. At this stage, let me refer to and rely upon a decision of the Supreme Court in P.K. Palanisamy vs. N. Arumugham and another [ (2009) 9 SCC 173 ], wherein the Supreme Court has explained in details the procedure to be adopted whenever a plaint is presented with deficit court fee. 33. At this stage, let me refer to and rely upon a decision of the Supreme Court in P.K. Palanisamy vs. N. Arumugham and another [ (2009) 9 SCC 173 ], wherein the Supreme Court has explained in details the procedure to be adopted whenever a plaint is presented with deficit court fee. The scope of Section 149 C.P.C. has also been explained in details. I may quote the relevant observations of the Supreme Court as under; "14. When a plaint is presented ordinarily it should be accompanied with the requisite court fees payable thereupon. Section 4 of the Court-fees Act, 1870 mandates the same in the following terms: "4. Fees on documents filed, etc., in High Courts in their extraordinary jurisdiction :- No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High Courts in any case coming before such Court in the exercise of its extraordinary original civil jurisdiction; or in the exercise of its extraordinary original criminal jurisdiction; in their appellate jurisdiction; - or in the exercise of its jurisdiction as regards appeals from the judgments (other than judgments passed in the exercise of the ordinary original civil jurisdiction of the Court) of one or more Judges of the said Court, or of a division Court; or in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence; as Courts of reference and revision. - or in the exercise of its jurisdiction as a Court of reference or revision; unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document." 15. It, however, does not mean that whenever a plaint is presented with deficit court fee, the same has to be rejected outrightly. Section 149 of the Code provides for the court's power to extend the period. It reads as under: "149. Power to make up deficiency of Court-fees. It, however, does not mean that whenever a plaint is presented with deficit court fee, the same has to be rejected outrightly. Section 149 of the Code provides for the court's power to extend the period. It reads as under: "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." Section 149 raises a legal fiction in terms whereof as and when such deficit court fee is paid, the same would be deemed to have been paid in the first instance. 16. Appellant while presenting the plaint inter alia contended that sufficient court fee stamps were not available in the sub-treasury. The Presiding Officers of the local Civil Courts in a given situation would be aware thereof. It may, therefore, consider the prayers made in that behalf by a suitor liberally. If court fees are not available in a sub-treasury for one reason or the other, the court having regard to the maxim "lex non cogit ad impossibilia" would not reject such a prayer. 17. Payment of court fees furthermore is a matter between the State and the suitor. Indisputably, in the event a plaint is rejected, the defendant would be benefited thereby, but if an objection is to be raised in that behalf or an application is to be entertained by the court at the behest of a defendant for rejection of the plaint in terms of Order VII, Rule 11(c) of the Code, several aspects of the matter are required to be considered. Once an application under Section 149 is allowed, Order VII, Rule 11(c) of Code will have no application. It is for that additional reason, the orders extending the time to deposit deficit court fee should have been challenged. 18. Once an application under Section 149 is allowed, Order VII, Rule 11(c) of Code will have no application. It is for that additional reason, the orders extending the time to deposit deficit court fee should have been challenged. 18. Filing of an application for rejection of plaint in a case of this nature as also having regard to the events which have taken place subsequent to registration of the suit appears to us to be mala fide. If the learned trial Judge did not entertain the said plea, the High Court should not have interfered therewith. 19. The respondents in their written statement did not raise any issue with regard to the correctness or otherwise of the orders dated 7th October, 1998, 8th November, 1998, 20th November, 1998 and 21st January, 1999. Rightly or wrongly, the plaint was accepted. The deficit court fee has been paid. The court was satisfied with regard to the bona fide of the plaintiff. Hearing of the suit proceeded; not only issues were framed but the witnesses on behalf of the parties were also examined by both the parties. 20. It is difficult to believe that from 10th January, 2001 to 4th January, 2008, the respondents or their counsel did not have any occasion to inspect the records. Any counsel worth itself would not only do so but even without doing so would address himself a question as to why a suit filed on 4th October, 1998 was entertained in the year 2000. The suit was at one point of time decreed ex parte. The same was set aside on certain conditions. Evidently, the conditions laid down had been satisfied only upon obtaining an extension of time. 21. In the aforementioned backdrop of events, we may not have to go into the correctness or otherwise of the decision rendered by the Madras High Court in K. Natarajan vs. P.K. Rajasekaran [ (2003) 2 M.L.J. 305 ], which has been followed in Ramiah and Anr. v. R. Palaniappan and Ors. [ (2007) 5 MLJ 559 ], S.V. Arjunaraja v. P. Vasantha [ 2005 (5) CTC 401 ] and V.N. Subramaniyam v. A. Nawab John and Ors. [ (2007) 1 MLJ 669 ]. 22. We have, however, serious reservations as to whether the civil court could hear a defendant before registering a plaint. The Code does not envisage such a situation. [ (2007) 5 MLJ 559 ], S.V. Arjunaraja v. P. Vasantha [ 2005 (5) CTC 401 ] and V.N. Subramaniyam v. A. Nawab John and Ors. [ (2007) 1 MLJ 669 ]. 22. We have, however, serious reservations as to whether the civil court could hear a defendant before registering a plaint. The Code does not envisage such a situation. When a suit is filed, the Civil Court is bound by the procedures laid down in the Code. The defendant upon appearing, however, in certain situations, may question the orders passed by the Civil Court at a later stage. 23. We would assume that the respondents were entitled to a notice before registration of plaint under Section 149 of the Code. Indisputably, the courts were required to assign reasons in support of their orders. Had the validity and/or legality of those orders been challenged before an appropriate court, it would have been possible by the plaintiffs to contend that the defendants had waived their right by their subsequent conduct and they would be deemed to have accepted the same. Even on later occasion, the courts would assign reasons upon satisfying itself once over again. If an order has been passed without hearing the one side, he may be heard but by reason thereof, the plaint would not be rejected outrightly. Before doing so, the applications of the plaintiff under Section 149 of the Code have to be rejected. 24. In Buta Singh (Dead) By LRs. v. Union of India [ (1995) 5 SCC 284 ], it was held: "10.... 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 Section 149, after giving due notice to the affected party. But that was not the situation in this case. Under the relevant provisions of the Court-fee Act applicable to appeals filed in the High Court of the Punjab and Haryana, the claimants are required to value the appeals in the MOAs and need to pay the required court fee. Thereafter the appeal would be admitted and the notice would go to the respondents. Under the relevant provisions of the Court-fee Act applicable to appeals filed in the High Court of the Punjab and Haryana, the claimants are required to value the appeals in the MOAs and need to pay the required court fee. Thereafter the appeal would be admitted and the notice would go to the respondents. The respondents would be put on notice of the amount, the appellant would be claiming so as to properly canvass the correctness of the claim or entitlement. The claim cannot be kept in uncertainty. If in an appeal under Section 54 of the Land Acquisition Act the amount is initially kept low and then depending upon the mood of the appellate court, payment of deficit court fee is sought to be made, it would create unhealthy practice and would become a game of chess and a matter of chance. That practice would not be conducive and proper for orderly conduct of litigation." 25. It is now a well settled principle of law that an order passed by a court having jurisdiction shall remain valid unless it is set aside. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors. [ AIR 1996 SC 906 ], it is stated: "7. In Halsbury's Laws of England, 4th edition, (Reissue) Volume 1(1) in paragraph 26, page 31, it is stated, thus: "If an act or decision, or an order or other instrument is invalid, it should, in principle be null and void for all purposes : and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a Court of competent jurisdiction. Until its validity is challenged, its legality is preserved." In the Judicial Review of Administrative Action De Smith, Wolf and Jowell, 1995 edition, at pages 259-260 the law is stated, thus: 'The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. Until its validity is challenged, its legality is preserved." In the Judicial Review of Administrative Action De Smith, Wolf and Jowell, 1995 edition, at pages 259-260 the law is stated, thus: 'The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows: (1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction.' Similarly, Wade and Forsyth in Administrative Law, Seventh edition-1994, have stated the law thus at pages 341-342: '...every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Radcliffe said: An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders" This must be equally true even where the brand of invalidity is plainly visible : for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed put repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects." {See also Baljinder Singh v. Rattan Singh [ 2008 (11) SCALE 198 ]} 26. A contention has been raised that the applications filed by the appellant herein having regard to the decisions of the Madras High Court could not have been entertained which were filed under Section 148 of the Code. 27. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the Code. 27. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the Code. Once the court granted time for payment of deficit court fee within the period specified therefore, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. It is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefore. 28. In Ram Sunder Ram v. Union of India and Ors. [ 2007 (9) SCALE 197 ], it was held: "19 ..... It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law [see TV. Mani v. Sangeetha Theatre and Ors. (2004) 12 SCC 278 ]. Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the learned Counsel for the appellant." 29. In N. Mani v. Sangeetha Theatres and Ors. [ (2004) 12 SCC 278 ], it is stated: "9. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the learned Counsel for the appellant." 29. In N. Mani v. Sangeetha Theatres and Ors. [ (2004) 12 SCC 278 ], it is stated: "9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." 30. An application for rejection of the plaint was filed only in the year 2008. Evidently, that was not the stage for entertaining the application. Order VII, Rule 11(c) of the Code could not have been invoked at that point of time. 31. Mr. Venugopal, however, would rely upon a decision of this Court in Saleem Bhai and Ors., v. State of Maharashtra and Ors. [ (2003) 1 SCC 557 ]. We would assume that the said decision lays down the law correctly. But we may notice that therein the court was concerned with an application filed under Order VII, Rule 11(a) and (d) of the Code to hold that the therefore exercising the jurisdiction thereunder the averments in the plaint are germane and the pleas taken by the defendants in the written statement would be wholly irrelevant at that stage. Therein, a direction to file the written statement was given without deciding the application under Order VII, Rule 11 of the Code. It was held to be a procedural irregularity touching the exercise of jurisdiction by the trial court. It was, therefore, not a case even on facts where the jurisdiction was exercised after the evidence had been adduced. The observation made must be held to be confined to the fact of that case only and it does not lay down a general proposition of law that even after the evidence are led, an application for rejection of the plaint under Order VII, Rule 11(c) is maintainable as by that time the suit has already been registered by the court upon exercising its jurisdiction under Section 149 of the Code. 32. 32. We may, however, notice that in Ram Prakash Gupta v. Rajiv Kumar Gupta and Ors.[ (2007) 10 SCC 59 ], it was held:- "22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, the plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order 7, Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the appellant-plaintiff to the effect that the suit filed by him is barred by limitation. 23. On going through the entire plaint averments, we are of the view that the trial court has committed an error in rejecting the same at the belated stage that too without adverting to all the materials which are available in the plaint. The High Court has also committed the same error in affirming the order of the trial court." 33. The question which survives for consideration is as to what is the scope of Section 149 of the Code? 34. In Ganesh Prasad Ray and Anr. v. Narendra Nath Sen and Ors. [ AIR 1953 SC 431 ], this Court held that the court fee is a matter between the State and the suitor. Mr. Venugopal would urge that the said observations were made keeping in view the fact that the contention in that behalf had been raised at the appellate stage. It may be so, but it is well known that the appeal is continuation of the suit. 35. Yet again in Mahanth Ram Das v. Ganga Das, [ AIR 1961 SC 882 ], this Court held:- "5. The case is an unfortunate and unusual one. The application for extension of time was made before the time fixed by the High Court for payment of deficit court fee had actually run out. That application appears not to have been considered at all, in view of the peremptory order which had been passed earlier by the Division Bench hearing the appeal, mainly because on the date of the hearing of the petition for extension of time, the period had expired. The short question is whether the High Court, in the circumstances of the case, was powerless to enlarge the time, even though it had peremptorily fixed the period for payment. The short question is whether the High Court, in the circumstances of the case, was powerless to enlarge the time, even though it had peremptorily fixed the period for payment. If the Court had considered the application and rejected it on merits, other considerations might have arisen; but the High Court in the order quoted, went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on 13-7-1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from 8-7-1954. How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari. No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council. But we are of opinion that in this case the Court could have exercised its powers first on 13-7-1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions, Sections 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come." 36. In Mannan Lal v. Mst. Chhotaka Bibi (Dead) by LRs. B. Sharda Shankar and Ors. [ (1970) 1 SCC 769 ], it was held: "17. On a parity of reasoning it is difficult to see why if a memorandum of appeal insufficiently stamped is not to be rejected as barred under the Limitation Act, why a different conclusion should flow as regards compliance with the Court Fees Act in view of the express provisions of Section 149 of the Code. In our opinion Section 149 will cure the defect as from the date when the memorandum of appeal was filed alike for the purpose of Limitation Act and the Court Fees Act and the appeal must be treated as one pending on 9th November 1962 and as such unaffected by Section 3 of the U.P. Act of 1952. In Wajid Ali v. Isar Bano, Section 149 was interpreted as a proviso to Section 4 of the Court Fees Act in order to avoid contradiction between the two sections. In Wajid Ali v. Isar Bano, Section 149 was interpreted as a proviso to Section 4 of the Court Fees Act in order to avoid contradiction between the two sections. The court was, however, careful to lay down that discretion had to be exercised in allowing deficiency of court fees to be made good but once it was done a document was to be deemed to have been presented and received on the date on which it was originally filed. This was a case of a plaint." 37. The said dicta was reiterated by a three judge Bench of this Court in Ganapathy Hegde v. Krishnakudva, [ (2005) 13 SCC 539 ] in the following words:- "5. In our opinion, the High Court was not right in forming the opinion which it did. The proviso to Order 7, Rule 11 CPC is attracted when the time for payment of court fee has been fixed by the court and the court fee is not supplied within the time appointed by the court. In the case at hand, though the plaint as originally filed was not affixed with the requisite court fee stamps, but before the suit was registered, the deficit court fee was supplied. The present one is not a case where the court had fixed the time for payment of requisite stamp paper which was not done within the time fixed and thereafter the plaintiff was called upon to seek an extension of time. Had that been the case, then, under the proviso, the plaintiff would have been called upon to assign and show the availability of any cause of an exceptional nature for delay in supplying the requisite stamp paper within the time fixed by the court. The trial court was also empowered under Section 149 CPC to extend the time. In the present case, the order passed by the trial court accepting the deficit court fee paid on 23-2-2000, thereafter registering the suit on 10-4-2000 and consequently the order dated 3-11-2001 rejecting the defendant-respondents' application under Order 7, Rule 11 CPC were perfectly in accordance with law and within the discretion conferred on the trial court with which the High Court ought not to have interfered in exercise of the jurisdiction vested in the High Court under Section 115 CPC. The order of the High Court, if allowed to stand, is likely to occasion failure of justice." 38. The order of the High Court, if allowed to stand, is likely to occasion failure of justice." 38. Yet again in K.C. Skaria v. Govt. of State of Kerala and Anr. [ (2006) 2 SCC 285 ], it was held: "20. The appellant next attempted to press into service Section 149 CPC to contend that he ought to have been given an opportunity to pay the deficit court fee on the total amount due for the work done. Section 149 provides that where the whole or any part of court fee prescribed for any document 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 court fee had been paid in the first instance. Section 4 of the Court Fees Act bars the court from receiving the plaint if it does not bear the proper court fee. Section 149 acts as an exception to the said bar, and enables the court to permit the plaintiff to pay the deficit court fee at a stage subsequent to the filing of the suit and provides that such payment, if permitted by the court, shall have the same effect as if it had been paid in the first instance. Interpreting Section 149, this Court in Mannan Lal v. Chhotaka Bibi held that Section 149 CPC mitigates the rigour of Section 4 of the CF Act, and the courts should harmonise the provisions of the CF Act and CPC by reading Section 149 as a proviso to Section 4 of the CF Act, and allowing the deficit to be made good within the period to be fixed by it. This Court further held that if the deficit is made good, no objection could be raised on the ground of bar of limitation, as Section 149 specifically provides that the document is to have validity with retrospective effect." 34. What is discernible from the decision of the Supreme Court is that payment of court fee is a matter between the State and the suitor. What is discernible from the decision of the Supreme Court is that payment of court fee is a matter between the State and the suitor. If a plaint is to be entertained by the Court at the behest of a defendant for rejection of the plaint in terms of Order VII Rule 11(c) C.P.C., several aspects of the matter are required to be considered. The Supreme Court has further explained that Section 148 of the C.P.C. is a general provision and Section 149 is special. The first application should be filed in terms of Section 149 of the Code. Once the Court grants time for payment of the deficit court fee within the period specified thereafter, it is permissible to extend the same by the Court in exercise of its power under Section 148 of the Code. 35. I may also refer to and rely upon one another decision of the Supreme Court on Section 149 of the C.P.C. in the case of Manoharan vs. Sivarajan and others [ (2014) 4 SCC 163 ]. In the said case before the Supreme Court, the suit filed by the appellant therein came to be dismissed as he could not pay the court fee due to financial difficulty. The Supreme Court noticed that the appellant had moved the Civil Court claiming his substantive right to his property. The Supreme Court, while allowing the appeal, observed that the appellant did not deserve the dismissal of the original suit by the Court for non-payment of court fee. According to the Supreme Court, the appeal deserved more compassionate attention from the Court of sub Judge in the light of the directive principle laid down in Article 39A of the Constitution of India which is equally applicable to the district judiciary. The Supreme Court held that it is the duty of the Courts to see that justice is meted out to people irrespective of their socio economic and cultural rights or gender identity. With regard to Section 149 of the C.P.C., the Supreme Court observed as under: "8. Section 149 of the Civil Procedure Code prescribes a discretionary power which empowers the Court to allow a party to make up the deficiency of court fee payable on plaint, appeals, applications, review of judgment etc. This Section also empowers the Court to retrospectively validate insufficiency of stamp duties etc. Section 149 of the Civil Procedure Code prescribes a discretionary power which empowers the Court to allow a party to make up the deficiency of court fee payable on plaint, appeals, applications, review of judgment etc. This Section also empowers the Court to retrospectively validate insufficiency of stamp duties etc. It is also a usual practice that the Court provides an opportunity to the party to pay court fee within a stipulated time on failure of which the Court dismisses the appeal. In the present case, the appellant filed an application for extension of time for remitting the balance court fee which was rejected by the learned sub Judge. It is the claim of the appellant that he was unable to pay the requisite amount of court fee due to financial difficulties. It is the usual practice of the court to use this discretion in favour of the litigating parties unless there are manifest grounds of mala fide. The Court, while extending the time for or exempting from the payment of court fee, must ensure bona fide of such discretionary power. Concealment of material fact while filing application for extension of date for payment of court fee can be a ground for dismissal..." 36. In the present case, when the application under Order VII Rule 11(c) of the C.P.C. came to be filed by the defendant with a prayer to reject the plaint, simultaneously, an application came to be filed by the appellant herein with a prayer that he may be permitted to deposit the entire court fee of Rs. 26,350/-. In my view, there was no good reason for the Trial Court to reject the application of the appellant here Exhibit : 15. However, the Trial Court thought fit not to pass any order on Exhibit : 15, but rather adjudicated the application filed by the defendant i.e. Exhibit : 13 for rejection of plaint and ultimately, rejected the plaint. 37. Let me refer to and rely upon one Full Bench decision of the Calcutta High Court in the case of Bibhas Mohan Mukherjee vs. Hari Charan Banerjee [1961 AIR (Cal) 491]. The issue before the Calcutta High Court was whether an order dismissing the suit under Section 8-B(3) of the Court-fees Act (Bengal Amendment) is appealable. 37. Let me refer to and rely upon one Full Bench decision of the Calcutta High Court in the case of Bibhas Mohan Mukherjee vs. Hari Charan Banerjee [1961 AIR (Cal) 491]. The issue before the Calcutta High Court was whether an order dismissing the suit under Section 8-B(3) of the Court-fees Act (Bengal Amendment) is appealable. As per the provisions of Section 8-B(3) of the Court-fees Act (Bengal Amendment), the suit is liable to be dismissed for failure on the part of the applicant to pay the court fees. Justice P.N. Mookerjee, in his separate but concurring judgment, observed as under: "16. I have no doubt in my mind that the order, dismissing the suit under S. 8-B(3) of the Court-fees Act, as amended in Bengal, is appealable as a decree, either upon the view that the said order is, in substance, an order of rejection of the plaint, as contemplated under O. 7, R. 11, of the Code of Civil Procedure, and hence a decree under the express terms of the definition S. 2(2) of the Code, or, upon the view that, even regarded, as an order of dismissal of the suit, as distinguished from a mere rejection of the plaint, it is still a decree within the said definition, satisfying as it does, all the requirements of its main part or provision. This view, in both its aforesaid branches, will be amply supported by the recent decision of the Supreme Court in 1952 SCJ 674 : ( AIR 1953 SC 28 ), where Mahajan, J., as he then was, delivering the judgment of the Court on the construction of Sec. 12 of the Court-fees Act and its apparent conflict with Order 7, Rule 11 of the Code and in matters of appeals from orders, rejecting plaints or dismissing suits. for and in case of non-payment of additional or deficit court-fees, expressed himself as follows at page 680 of the report (SCJ) : (at p. 32 of AIR): "The construction placed on this Section (S. 12) by a long course of decisions is one which reconciles the provisions of the Court-fees Act with that of the Code of Civil Procedure and does not make those provisions nugatory and is, therefore, more acceptable than the other constructions which would make the provisions of either one or the other of these statutes nugatory. Perhaps it may be possible to reconcile the provisions of the two statutes by holding that 'the finality, declared by S. 12, of the Court-fees Act, means that the parties cannot impugn such a decision by preferring an appeal but that it does not confer on such decisions a complete immunity from examination in a higher Court. In other words, S. 12 when it says that such a decision shall be final between the parties only makes the decisions of the Court on a question of court-fee non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Code and it does no more than that.' If a decision under S. 12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers. Similarly, 'when a party, thinking that a decision under S. 12 is palpably wrong, takes the risk of his plaint being rejected Or suit dismissed and then appeals from the order, rejecting the plaint, or from the decree, dismissing the suit, but not from the decision on the question of court-fee, then it is open to him to challenge the interlocutory order even on the question of court-fee made in the suit' or appeal. The word "finality" construed in the limited sense, in which it is often used in statutes, means that no appeal lies from an order of this character as such and it means no more than that." 17. The words "when a party, thinking that a decision under Sec. 12 is palpably wrong, takes the risk of his plaint being rejected or suit dismissed and then appeals from the order, rejecting the plaint, or from the decree, dismissing the suit, but not from the decision on the question of court-fee, then it is open to him to challenge the interlocutory Order even on the question of court-fee made in the suit," which I have underlined (here into") above, are directly relevant for our present purpose and they practically conclude the instant reference as, in my opinion, they 'were obviously' referring to rejection of plaint or dismissal of suit on account of non-payment of court-fee or deficit court-fee. It is also interesting to note that Das, J. himself who delivered the judgment of this Court in 56 Cal WN 8, 5, 3 : ( AIR 1953 Cal 42 ), and relied, in support of the view, taken by him, on the point in the said case, upon his own earlier decision, reported in 52 Cal WN 684 did actually hold, in the latter case, while commenting upon the earlier decision of this Court in 44 Cal WN 745 : (AIR 1940 Cal 451), and justifying and distinguishing the same, - Or, seeking so to do, - that the order in that case, 44 Cal WN 745 : (AIR 1940 Cal 451), which was actually one, rejecting the plaint, but which should have been one, dismissing the suit under S. 8-B(3) of the Court-fees Act as amended in Bengal, as pointed out by the learned Judges there, was appealable both as an order, rejecting the plaint, and also as a decree, dismissing the suit. That, in my view, was the correct approach and the correct statement of the law on the point and, in my opinion, the position in this respect was the same in Jarimon khatoon's case as it was in and at the time of the earlier decision of this Court in Annapurna Dassi v. Sarat Chandra, 38 Cal WN 1063 : (AIR 1935 Cal 157 (D), in spite of the 1935 Bengal Amendment of the Court-fees Act, introducing inter alia S. 6(2) and S. 8-B (3), - and in their present forms, - and the distinction, drawn of sought to be drawn by Das, J., in 56 Cal WN 853 : ( AIR 1953 Cal 42 ), supra, in the matter of the aforesaid decision, upon or by reason of the above amendment is, to my mind, not justified. 18. 18. In rejecting the contention that an order, dismissing the suit under S. 8-B(3) of the Court-fees Act (Bengal Amendment), was appealable, Das, J., gave two reasons in 56 Cal WN 853 : ( AIR 1953 Cal 42 ), namely, first, that the order is, by statute, one of dismissal and could not, therefore, be regarded as an order, rejecting the plaint, particularly, in view of S. 6(2) of the above Act, where the statute expressly provided for rejection of the plaint at the stage, contemplated under that Section, in contradistinction to the dismissal of the suit in S. 8-B (3) at the later post-registration but prejudgment stage, and, Secondly, that the order of dismissal could not also be regarded as a decree within the main part of the definition S. 2(2) of the Code of Civil Procedure, as it did not decide any of the matters in controversy in the suit. In my view, and I say this with the utmost respect to the learned Judge, whom I have always held in high esteem and veneration, - neither of the above two reasons can be supported. Das, J. drew a distinction between rejection of the plaint and dismissal of the suit for non-payment of court-fees and he sought to derive support for that distinction from the use of the two different expressions in the two Sections 6(2) and 8-B(3) of the Court-fees Act (Bengal Amendment). It is to be remembered, however, that, strictly speaking, rejection of plaint is appropriate only at the pre-registration stage of the suit and, at its post-registration stage, if the suit fails for any reason whatsoever, the proper or more appropriate order or expression of the same would be dismissal of the suit. So far, however, as Order VII. Rule 11 of the Code is concerned, established authorities have given the term 'rejection of plaint' the wider connotation of including also a post-registration dismissal of the suit on any of the grounds, mentioned therein, including nonpayment of court-fee, and this extended sense of that term or expression has always been accepted for purposes of that particular provision. Rule 11 of the Code is concerned, established authorities have given the term 'rejection of plaint' the wider connotation of including also a post-registration dismissal of the suit on any of the grounds, mentioned therein, including nonpayment of court-fee, and this extended sense of that term or expression has always been accepted for purposes of that particular provision. The dismissal of the suit under Section 8-B(3) of the Court-fees Act (Bengal Amendment) would, therefore, obviously, come within rejection of plaint, as contemplated in Order VII, Rule 11 of the Code, and would be appealable as a decree under Section 2(2) thereof, which expressly includes such rejection within its terms. The test of decree and appealability is to be found in the Code of Civil Procedure and not in the Court-fees Act, and, therefore, the dismissal of the suit under Section 8-B(3) of the Court-fees Act, as amended in Bengal, though in that statutory form of dismissal, - and oven conceding that rejection of plaint under that Act, or, so far as that Act is concerned, would be only under Section 6(2), - would be rejection of plaint under Order VII, Rule 11 of the Code and thus appealable as a decree, as explained hereinbefore. This reconciles Order VII, Rule 11 of the Code of Civil Procedure and S. 8-B(3) of the Court-fees Act, as amended in Bengal, by equating dismissal of the suit under the one with rejection of the plaint under the other, and removes the difficulty which, otherwise, would have arisen and persisted in the matter. 19. Even otherwise, that is, treating the order in question as one of dismissal of the suit, as distinguished from an order of mere rejection of the plaint, it will, in my opinion, still be a decree, as, obviously, it amounts to a refusal of any relief to the plaintiff in the particular suit and thus decides the familiar issue, always involved in a suit, namely, whether the plaintiff is entitled to any relief therein, against the plaintiff. The dismissal, therefore, would be a decree within the main part of the definition Section, Sec. 2(2), of the Code also. The dismissal, therefore, would be a decree within the main part of the definition Section, Sec. 2(2), of the Code also. I do not think that the above view would be opposed to any of the recognised decisions under Sec. 2(2) of the Code, provided the distinction is borne in mind that what is held here to be the "decree" is not the order, - the interlocutory order, as it may well be termed without impropriety. - deciding the issue of court-fee (and valuation), but the ultimate or final dismissal of the suit and that dismissal which, under the law, disposes of that particular suit, may well be held to be a decree, though the decision on a particular issue, as distinguished from to dismissal of the suit, obviously stands on a different footing and has, quite rightly, more often than not, been differently construed, and provided, further, it is remembered that dismissal of the suit for non-payment of court-fee is not a "dismissal for default", which, is excluded, - and expressly excluded, - from the definition of "decree" under S. 2(2) of the Code, as such dismissal of the suit is not, in my opinion, " 'an order' of dismissal for default" within the meaning of the said Section and must always be distinguished and kept distinct and separate from the same. 21. It is also necessary to point out that the dismissal of the suit under S. 8-B(3) of the Court-fees Act (Bengal Amendment) is not a dismissal on the merits in the sense of a decision, actual or constructive, on any of the other issues.. It only decides that the plaintiff is not entitled, to any relief in the particular suit, that is, upon, the particular plaint as stamped, and that the 1 amount of court-fee, payable on that plaint, would be as determined in that decision. To that extent, and no more, would it be res judicata and, therefore, a fresh suit on the same cause of action, subject of course, to the decision on court-fees, as made therein, as noted above, would not be barred. To that extent, and no more, would it be res judicata and, therefore, a fresh suit on the same cause of action, subject of course, to the decision on court-fees, as made therein, as noted above, would not be barred. This was held, as far back as in the year 1890 in ILR 12 All 129 (FB), under the corresponding S. 10(ii) of the original Court-fees Act, and that view has ever held the Held and, in the aforesaid context and upon the reasoning given above, it has not been rendered obsolete even by the change on alteration, made in the Court-fees Act by the Bengal Amendments of 1935, or, in the definition of decree by the new Code of 1908. It may also be pointed out; here that, under the very terms of S. 8-B(3) of the Court-fees Act (Bengal Amendment), the dismissal under it must be 'before judgment is delivered'. This, indeed, is significant and it completely rules out any idea of res judicata on the merits of the suit or on its issues on the merits by reason of such dismissal." 38. The final conclusion may be summed up thus: [1] Order VII Rule 11(c) of the C.P.C. will be applicable only in those cases wherein insufficient stamp is paid. If no stamp at all is paid, then the suit is liable to be dismissed under Section 4 of the Gujarat Court Fees Act, 2004. [2] Even if the suit is dismissed under Section 4 of the Gujarat Court Fees Act, 2004, the same will amount to rejection of plaint and the order in that regard will be a decree and the same will be appealable. [3] If no stamp at all is paid at the time of the presentation of the plaint, then the same is not liable to be filed, exhibited or recorded in any Court of justice unless along with the plaint and an application is moved by the plaintiff under Section 149 of the C.P.C. seeking time to pay the court fees. If any such application is filed under Section 149 of the C.P.C., then it is for the Court concerned to look into the same and pass an appropriate order by exercising its discretion judiciously. [4] Section 4 of the Gujarat Court Fees Act, 2004 bars the Court from receiving the plaint if it does not bear the court fee. If any such application is filed under Section 149 of the C.P.C., then it is for the Court concerned to look into the same and pass an appropriate order by exercising its discretion judiciously. [4] Section 4 of the Gujarat Court Fees Act, 2004 bars the Court from receiving the plaint if it does not bear the court fee. Section 149 C.P.C. acts as an exception to the said bar and enables the Court to permit the plaintiff to pay the court fees at a stage subsequent to the filing of the suit and provides that such payment, if permitted by the Court shall have the same effect as if it had been paid in the first instance. [5] Section 148 of the Code is a general provision and Section 149 thereof is special. The first application praying for time to pay the court fees should be in terms of Section 149 of the Code. Once the Court grants time for payment of the court fees within the period specified thereafter, it is permissible to extend the same by the Court in exercise of its power under Section 148 of the Code. 39. In view of the aforesaid discussion, this First Appeal is allowed. The judgment and order dated 26th July, 2017 passed by the Additional Senior Civil Judge, Morbi below Exhibit : 23 in Special Civil Suit No. 23 of 2016 is quashed and set aside. The application Exhibit : 15 filed by the appellant herein seeking permission to pay the court fees of the amount of Rs. 26,350/- is allowed. The Special Civil Suit No. 23 of 2016 in the Court of the Additional Senior Civil Judge, Morbi shall be restored to its original file on deposit of Rs. 26,350/- towards court fees. Direct service is permitted.