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2023 DIGILAW 47 (ALL)

Sahjadi v. Mohd. Yusuf Khan

2023-01-05

J.J.MUNIR

body2023
JUDGMENT : [J.J. Munir, J.] 1. This is a defendants' appeal under Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908 (for short, 'the Code'), assailing an order of remand passed by the Lower Appellate Court. 2. The plaintiff-respondent (for short, 'the plaintiff') instituted O.S. No. 63 of 1997 before the Court of the Civil Judge (Sr. Div.), Azamgarh against the defendant-appellant, Sahjadi (since deceased) and now represented by her LRs, defendant-appellants Nos. 1/1 to 1/4 (for short, 'the defendant'), claiming a decree for possession. The plaintiff sought to recover possession of a house denoted by letters A B C D E F H1 H I, as shown in the plaint map. Not much about the parties' case on merits is relevant for the purpose of the present appeal, because the issue here is limited to rejection of the plaint on ground of non-payment of court-fee, determined by the Court. 3. On the pleadings of parties, issues were framed and Issue No. 5 was to the effect: Whether the suit is undervalued and the court-fee paid insufficient? The aforesaid issue appears to have been tried as a preliminary and on 16.12.2015, the Trial Court decided it in the affirmative, holding that the proper valuation of the suit was Rs. 9,82,034/-. The plaintiff was ordered to pay court-fee on the aforesaid value of the suit property ad valorem. Also, the plaintiff was directed to suitably amend the plaint. 4. After Issue No. 5 had been decided, the suit was set down for final hearing with 21.12.2015 being scheduled for recording evidence. It appears that the suit was adjourned on 21.12.2015 and 07.01.2016 in the presence of the parties' Counsel. On 18.01.2016, an adjournment application was moved on behalf of the plaintiff, which was allowed. Though adjournment was allowed, the defendant objected saying that the plaintiff had not complied with the order dated 16.12.2015. To that objection, the plaintiff produced before the Court a search application from the Court of the District Judge saying that the order dated 16.12.2015 had been challenged in revision before the learned District Judge. It does appear that a revision was filed by the defendant before the District Judge against the order, determining the valuation and directing court-fee to be paid ad valorem. The said revision was numbered as Civil Revision No. 2 of 2016 on the file of the District Judge. 5. It does appear that a revision was filed by the defendant before the District Judge against the order, determining the valuation and directing court-fee to be paid ad valorem. The said revision was numbered as Civil Revision No. 2 of 2016 on the file of the District Judge. 5. After adjournment was granted on 18.01.2016, the case was adjourned across a number of dates, all fixed for further orders. These dates are 15.02.2016, 25.02.2016, 10.03.2016 and 16.04.2016. These dates were apparently fixed, because orders of the Trial Court regarding valuation and court-fee were subjudice in revision before the learned District Judge. On 15/16.04.2016, the suit was adjourned to 03.05.2016. On 03.05.2016, both parties sought adjournment on account of pendency of the revision, leading the suit to be posted on 17.05.2016, yet again for final hearing. On 17.05.2016, the defendant moved an application 410-Ga 2 under Order VII Rule 11 of the Code, seeking rejection of the plaint on ground of insufficiency of court-fee and non-compliance with the Court's order to correct the valuation and supply the requisite court-fee. Thereafter, on 30.05.2016, the plaintiff moved an application in compliance with the order dated 16.12.2015, bearing paper No. 412-Ka-2, seeking to amend the plaint. 6. The learned Civil Judge (Sr. Div.)/ F.T.C., Azamgarh, before whom the application under Order VII Rule 11 of the Code came up, proceeded to allow the same and rejected the plaint by his order dated 31.08.2016, for the plaintiff's failure in making good the deficiency in court-fee. 7. The plaintiff appealed the said order to the learned District Judge, Azamgarh vide Civil Appeal No. 1093 of 2016. The appeal came up for hearing before the Additional District Judge, Court No. 3, Azamgarh on 01.05.2022. The learned Judge by his order impugned dated 01.05.2022 has allowed the appeal, set aside the Trial Judge's order dated 31.08.2016 and rejected the defendant's application. The suit was directed to be restored to the file of the Trial Court with a direction to that Court to proceed further in accordance with law. 8. Aggrieved by the order of remand dated 01.05.2022 passed by the Lower Appellate Court, the defendant has instituted the present appeal under Order XLIII Rule 1(u) of the Code. 9. Heard Mr. Ashish Kumar Srivastava, learned Counsel for the defendant in support of the motion under Order XLI Rule 11 of the Code and Mr. 8. Aggrieved by the order of remand dated 01.05.2022 passed by the Lower Appellate Court, the defendant has instituted the present appeal under Order XLIII Rule 1(u) of the Code. 9. Heard Mr. Ashish Kumar Srivastava, learned Counsel for the defendant in support of the motion under Order XLI Rule 11 of the Code and Mr. Jitendra Kumar, learned Counsel appearing on behalf of the plaintiff. 10. The Lower Appellate Court has questioned the course of proceedings before the Trial Court in directing the plaintiff vide order dated 16.12.2015 to amend the plaint, correct the valuation, make good the deficiency in court-fee and at the same time setting down the suit for final hearing on 21.12.2015. The Lower Appellate Court has remarked that the Trial Court ought not to have scheduled the suit for trial unless the necessary amendment was carried out and the court-fee paid. 11. It is remarked by the Lower Appellate Court that notwithstanding the non-compliance of the order dated 16.12.2015 by the plaintiff, the Trial Judge adjourned the suit across a number of dates, which shows that the Trial Court was covertly granting time to the plaintiff to comply with the order under reference. But, the Lower Appellate Court did not accept the defendant's submission that it was not open to the Trial Court to enlarge time under Section 148 of the Code beyond 30 days in all, reckoned from the time fixed by the Court initially for carrying out its order dated 16.12.2015. The Lower Appellate Court has relied upon the proviso to Order VII Rule 11 of the Code to conclude that the Court had ample power, upon cause of an exceptional nature being shown for non-compliance with the direction to correct the valuation and supplying the requisite court-fee within time fixed by the Court. 12. The Lower Appellate Court found that the cause of exceptional nature envisaged under the proviso to Rule 11 of Order VII of the Code in the fact that the plaintiff had challenged the order directing him to correct the valuation in revision, that was pending before the District Judge. 12. The Lower Appellate Court found that the cause of exceptional nature envisaged under the proviso to Rule 11 of Order VII of the Code in the fact that the plaintiff had challenged the order directing him to correct the valuation in revision, that was pending before the District Judge. The Lower Appellate Court also took note of the clause in the proviso to Order VII Rule 11 of the Code, which empowers the Court upon noticing cause of an exceptional nature and where satisfied that refusal to extend time would result in grave injustice to the plaintiff, to extend the time for correction of the valuation and payment of the requisite court-fee. Bearing in mind the aforesaid position of the law, the Lower Appellate Court felt that the order dated 16.12.2015 being subjudice in a revision before the District Judge, it was not only a cause of exceptional nature, but the Trial Court's order in declining to grant time to comply with the order, constituted a deprivation of the plaintiff's right on a technical ground. It was also taken note of by the Lower Appellate Court that no orders were passed on the plaintiff's application, seeking amendment, made soon after the application under Order VII Rule 11 of the Code was moved by the defendant. The Lower Appellate Court, relying on certain authorities, found it to be a case of failure to exercise jurisdiction by the Trial Court, that resulted in grave injustice to the plaintiff. It is on the foot of the said reasoning that the Lower Appellate Court has set aside the rejection of the plaint and remanded the suit to the Trial Court for proceeding further in accordance with law. 13. The learned Counsel for the defendant has impressed upon the Court that the conduct of the plaintiff showed that he had, over a period of more than five and a half months, neglected to comply with the Trial Court's orders and his inaction could not be condoned. The Trial Court rightly exercised its discretion against permitting the plaintiff to amend the plaint and complying with the order once the defendant had moved for rejection of the plaint, much after the order dated 16.12.2015 was passed. 14. The learned Counsel for the plaintiff, on the other hand, has supported the order impugned and submitted that on a technicality, the plaint ought not to be rejected. 15. 14. The learned Counsel for the plaintiff, on the other hand, has supported the order impugned and submitted that on a technicality, the plaint ought not to be rejected. 15. In Salem Advocate Bar Association, T.N. (II) v. Union of India, (2005) 6 SCC 344 while dealing with the powers under Section 148 of the Code to enlarge time, fixed or granted by the Court for the doing of any act, it was held by their Lordships of the Supreme Court: “41. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the court for performance of an act prescribed or allowed by the court. 42. In Mahanth Ram Das v. Ganga Das [ (1961) 3 SCR 763 : AIR 1961 SC 882 ] this Court considered a case where an order was passed by the Court that if the court fee was not paid by a particular day, the suit shall stand dismissed. It was a self-operating order leading to dismissal of the suit. The party's application filed under Sections 148 and 151 of the Code for extension of time was dismissed. Allowing the appeal, it was observed: (SCR pp. It was a self-operating order leading to dismissal of the suit. The party's application filed under Sections 148 and 151 of the Code for extension of time was dismissed. Allowing the appeal, it was observed: (SCR pp. 767-68) “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 on 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.” 43. There can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the court would have inherent power to extend time beyond 30 days.” 16. Following the decision in Salem Advocate Bar Association (supra), this Court in Amar Nath Gupta v. District Judge, Gorakhpur, 2006 SCC OnLine All 833, in the context of an application seeking extension of time to make good the deficiency in court-fee in an appeal from an original decree, which was declined by the District Judge, held: “9. From the aforesaid, the Supreme Court held that the upper limit fixed under section 148 of the Act cannot take away the inherent powers of the Court to pass an order as may be necessary for the ends of justice. The Court has an inherent power under section 151, C.P.C. to extend the time. From the aforesaid, the Supreme Court held that the upper limit fixed under section 148 of the Act cannot take away the inherent powers of the Court to pass an order as may be necessary for the ends of justice. The Court has an inherent power under section 151, C.P.C. to extend the time. In the present case, the plea of financial constraints on the part of the appellant has nowhere been considered by the Court below nor any finding has been given that the appellant had the requisite resources to pay the Court fee and that he was seeking time in order to delay the execution of the decree. In the absence of any findings on this aspect, this Court is of the opinion that the Court below was not justified in rejecting the application of the petitioner, especially, when during the interim period he had deposited the remaining balance amount of the Court fee. The Court below should have considered this aspect of the matter, considering that the delay in clearing the deficiency of the amount was only five months.” 17. It may be noticed here that the provisions of Section 149 of the Code envisage a power with the Court to grant time to a person to supply deficient court-fee, that has not been paid according to the prescription, for any document in whole or in part. Section 149 of the Code reads: “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 is such fee had been paid in the first instance.” 18. Thus, while Section 148 of the Code empowers the Court generally to extend time for the performance of acts, for which any period is fixed or granted by the Court, Section 149 is a provision that is specifically engrafted in the Code to empower the Court to grant time to a person, who has not paid the whole or part of the court-fee taxable on a document. The power under Section 149 can be exercised in the Court's discretion at any stage. The powers of the Court under Section 149 vis-a-vis the provisions of Order VII Rule 11 of the Code in the matter of Court's discretion to permit the plaintiff to make good the deficient court-fee fell for consideration of the Kerala High Court in V.O. Devassy v. Periyar Credits, 1994 SCC OnLine Ker 88 : AIR 1994 Ker 405 . In V.O. Devassy (supra), it was held: “16. The principles emerging from the aforesaid decisions can be stated thus: Section 149, C.P.C. empowers the court to allow any person by whom court-fee is payable to pay the whole or part, as the case may be, of such court-fee. 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 has to be treated as an exception to Ss. 4 and 6 of the Court-fees Act, 1870 and serves as a proviso to those sections by allowing the deficit to be made good within the time fixed by the court. But the power is subject to the discretion of the court to be exercised in accordance with judicial principles and cannot be claimed as of right. If the court has received the deficit court-fee and admitted the plaint or the court has impliedly extended the period, the payment of deficit shall take effect from the date of presentation of the plaint or appeal, as the case may be. The words “at any stage” in Sec. 149 contemplates that the deficiency can be ordered to be made good even after the period of limitation for filing appeal, the suit or has expired. The discretion can be exercised even in the case of a plaint without any court-fee. The words “at any stage” in Sec. 149 contemplates that the deficiency can be ordered to be made good even after the period of limitation for filing appeal, the suit or has expired. The discretion can be exercised even in the case of a plaint without any court-fee. When the court allows the plaintiff or the appellant time to pay deficit court-fee in exercise of its discretion, the other party cannot attack the order on the ground that it takes away his right to plead the bar of limitations; nor can he claim to have derived a vested right by the non-payment of the court-fee. Under the latter part of Sec. 149 the defective plaint or appeal memorandum is validated with retrospective effect if the deficit court-fee is subsequently made up. The power to permit the party to pay the deficit court-fee is not in any way affected by any bar of limitation. The section is general in its terms and applies to all documents chargeable with court-fee under the Court-fees Act including plaints, appeal memorandum etc. 17. Under Order 7. Rule 11(c) the court is bound to grant some time to supply the deficit court-fee on a plaint insufficiently stamped. The plaint is liable to be rejected under that sub-rule only if the plaintiff has failed to supply the requisite stamp paper within the time as required by the court. The court has therefore an obligation to require the party to make good the deficiency in the case of a plaint. The discretion conferred on the court under Sec. 149 is over and above this obligation under Rule 11 of Order 7. In the case of an appeal the discretion under S. 149 applies. The proper provision under which time may be granted or extended is Sec. 149 and not Order 7, Rule 11 which only states the circumstances in which the plaint shall be rejected. In other words, Rule 11 of Order 7 is, not an enabling provision, but only a disabling one.” 19. The decision of the Kerala High Court in V.O. Devassy was followed by the Madras High Court in K. Kalisamy v. R. Gowri, 2007 SCC OnLine Mad 78, where it was held: “16. In other words, Rule 11 of Order 7 is, not an enabling provision, but only a disabling one.” 19. The decision of the Kerala High Court in V.O. Devassy was followed by the Madras High Court in K. Kalisamy v. R. Gowri, 2007 SCC OnLine Mad 78, where it was held: “16. From the above decisions it is clear that the power to permit the party to pay the deficit court fee is not in any way affected by any bar of limitation and the object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the court would have inherent power to extent time beyond 30 days. Admittedly, the reason given for non payment of court fee at the time of filing of the Plaint is that the Stamp Papers were not available. The said fact is not disputed by the petitioner. The learned Subordinate Judge, Coimbatore has exercised the inherent powers of the Court under Section 151 CPC in admitting the I.A. No. 218 of 2003 and allowing the plaintiff to pay the deficit court on 27.2.2003.” 20. No doubt, in the present case, there was delay on the plaintiff's part in carrying out the orders of the Court dated 16.12.2015, but as rightly remarked by the Lower Appellate Court, the reason was the plaintiff's efforts to dislodge the order in revision that was pending during this period of time. The Lower Appellate Court has acted ex debito justitiae to enable parties to suit their rights on merits, rather than foreclosing the plaintiff's cause on technicalities. 21. This is in keeping with the spirit of the Code, particularly, Section 149. The guidance of the Supreme Court in Salem Advocate Bar Association, also commends that course of action. 22. In the circumstances, this Court finds no infirmity with the order impugned. The appeal fails and stands summarily dismissed.