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2019 DIGILAW 201 (MAD)

M. Chidambaram v. Husin Chaung

2019-01-21

T.RAVINDRAN

body2019
ORDER : T. Ravindran, J. 1. The civil revision petition is directed against the fair and decreetal orders, dated 26.03.2009, passed in I.A. No. 251 of 2004 in O.S. No. 581 of 2002, on the file of the Principal Subordinate Court, Dindigul. 2. The petitioner has preferred the suit against the respondent for specific performance, on the basis of the reconveyance agreement. The respondent has preferred the written statement challenging the entitlement of the petitioner to seek and obtain the reliefs prayed for in the suit preferred by him. Pending suit, it is found that the respondent has come forward with an application in I.A. No. 251 of 2004 seeking to reject the petitioner's suit on the footing that the petitioner has presented the plaint papers on 03.12.2001 only with a minimum Court fee of Rs. 10/-, despite the availability of the stamp papers and also without obtaining the permission from the Court for the payment of the minimum Court fee and the balance requisite later, and the plaint papers having been returned by the Court, thereafter, the petitioner had re-presented the papers on 28.11.2002, two months after the expiry of the period of limitation for filing the suit, without preferring any application seeking extension of time for the payment of the deficit Court fee and therefore, the plaint presented by the petitioner is liable to be rejected and accordingly, prayed for the appropriate orders. 3. 3. The petitioner has resisted the abovesaid application of the respondent contending that even though he had preferred the plaint papers with deficit Court fees, the plaint papers having been returned by the Court for compliance and thereafter, he had complied with the defects pointed out by the Court below and re-presented the papers along with the application to condone the delay in re-presentation under Section 148 of the Code of Civil Procedure and the same having been condoned by the Court below accepting the reasons given by the petitioner and accordingly, thereby, the Court below having accepted the delay in the payment of the deficit Court fee on the part of the petitioner, the respondent is not entitled to seek the rejection of the plaint, on the abovesaid ground, and the order passed by the Court below, in entertaining the application under Section 148 of the Code of Civil Procedure is deemed to be an order passed under Section 149 of the Code of Civil Procedure, accordingly, prayed for the dismissal of the application. 4. The Court below, on a consideration of the rival contentions put forth by the respective parties and the materials placed on record, was pleased to entertain the application preferred by the respondent and thereby, rejected the petitioner/plaintiff's suit. Aggrieved over the same, the petitioner has come forward with the civil revision petition. 5. From the materials placed on record, it is found that the petitioner had preferred the plaint on 03.12.2001 only on paying the Court fee of Rs. 10/-. As could be seen from the valuation of the plaint relief, the petitioner has valued the relief at Rs. 4,60,400/- and accordingly, also stated that he is liable to pay the Court fees under Sections 42 and 27 of the Tamil Nadu Court Fees and Suits Valuation Act, in all, amounting to Rs. 34,531/-. Therefore, it is seen that on the date of the presentation of the plaint, the petitioner has not affixed the requisite Court fees for the entertainment of the plaint. The plaint papers having been returned for compliance on various aspects on 04.12.2001, thereafter with a delay of 10 months and 25 days, the petitioner, affixing the balance Court fees, had re-presented the papers on 28.11.2002. The plaint papers having been returned for compliance on various aspects on 04.12.2001, thereafter with a delay of 10 months and 25 days, the petitioner, affixing the balance Court fees, had re-presented the papers on 28.11.2002. It is noted that the petitioner along with the re-presentation of the plaint papers also preferred an application under Sections 148 and 151 of the Code of Civil Procedure to condone the delay in the re-presentation. As regards the abovesaid application, it is noted that the said application had been preferred by the petitioner only for the condonation of the delay in the re-presentation of the plaint papers and not for the condonation of the delay in the payment of the Court fees as provided under Section 149 of the Code of Civil Procedure. No doubt, it is noted that the abovesaid application had been entertained by the Court below, without notice to the respondent. However, as could be seen from the materials placed on record and as determined by the Court below, when the petitioner has not affixed the necessary Court fees and only paid the minimum Court fee of Rs. No doubt, it is noted that the abovesaid application had been entertained by the Court below, without notice to the respondent. However, as could be seen from the materials placed on record and as determined by the Court below, when the petitioner has not affixed the necessary Court fees and only paid the minimum Court fee of Rs. 10/- and only thereafter, on the plaint papers being returned and while re-presenting the plaint papers on 28.11.2002, he has affixed the requisite Court fees, it is obvious that the petitioner has not affixed the proper Court fees within the time allowed by law for the presentation of the plaint and on the other hand, had affixed the proper Court fees only beyond the period of limitation and in such view of the matter, when the petitioner has not pleaded any cause as to the non-availability of the stamp papers on the date of the presentation of the plaint on 03.12.2001 and also not having come forward with necessary application under Section 149 C.P.C. seeking permission of the Court for paying the minimum Court fees at the first instance and the balance Court fees at the later stage, without any rhyme or reason, is found to have and chosen to affix the proper Court fees only on the date of the re-presentation on 28.11.2002 and in such view of the matter, when the application preferred by the petitioner for the condonation of the delay in the re-presentation does not refer to anything about the delay in the affixation of the proper Court fees, as also the condonation of the same, and the abovesaid application pertains to only the delay in re-presentation in general, as rightly determined by the Court below, the abovesaid application cannot be construed as the application under Section 149 of the Code of Civil Procedure for entitling the petitioner to avail the latter part of the abovesaid provision of law. In the light of the above position, in the absence of a specific application preferred by the petitioner under Section 149 of the Code of Civil Procedure for seeking time to pay the deficit Court fee, the petitioner cannot be allowed to affix the Court fee at any time he desires, particularly, beyond the period of limitation, for presenting the plaint and in such view of the matter, as rightly determined by the Court below and as rightly contended by the respondent's counsel, the petitioner having not affixed the necessary Court fee for the proper presentation of the plaint and also not obtained appropriate orders from the Court concerned under Section 149 of the Code of Civil Procedure, it is found that the petitioner's suit is liable to be rejected under Order VII Rule Order VII Rule 11 of the Code of Civil Procedure. 6. The petitioner's counsel, in support of his contentions placed reliance upon the decision in Ganapathy Hegde vs. Krishnakudva and another, reported in (2005) 13 SCC 539 . However, as rightly put forth by the respondent's counsel, in the case covered under the abovesaid decision, when it is noted that the requisite Court fees for the presentation of the plaint had been affixed within the time allowed by law, accordingly, on the facts and circumstances of the said case, the Apex Court confirmed the dismissal of the application preferred for rejecting the plaint. However, insofar as our case is concerned, when it is found that the petitioner has not affixed the proper Court fees within the time allowed by law and also not obtained any orders from the Court under Section 149 C.P.C., in the light of the decision in S.V. Arjunaraja vs. P. Vasantha, reported in 2005 (5) CTC 401 relied upon by the respondent's counsel, in all, it is seen that the order of the Court below in rejecting the petitioner's plaint is perfect. 7. 7. Furthermore, the respondent's counsel contended that the order passed by the Court below rejecting the plaint is a decree under the Code of Civil Procedure and accordingly, contended that as against the rejection of the plaint, the only remedy available to the petitioner is to prefer an appeal under Section 96 of the Code of Civil Procedure and not the revision petition and on the abovesaid ground also, according to him, the civil revision petition is liable to be dismissed. In this connection, he placed reliance upon the decisions in R. Shanmughavelu Pillai vs. R. Karuppannan Ambalam, reported in AIR 1976 Madras 289 and Nesammal and another vs. Edward and another, reported in 1998 (III) CTC 165 . Considering the provisions of law outlined in the above cited decisions, when it is noted that the order of the rejection of the plaint amounts to a decree under the Code of Civil Procedure, a against the said order, only an appeal would lie as provided under Section 96 of the Code of Civil Procedure and not revision, in that view of the matter also, it is found that the civil revision petition preferred by the petitioner is liable to be dismissed. 8. For the reasons aforestated, the civil revision petition is dismissed with costs.