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RAMIAH versus R.PALANIAPPAN

High Court of Madras

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Ramiah v. R.Palaniappan - CRP.PD.Nos.1690 of 2005 [2007] RD-TN 2317 (13 July 2007)

In the High Court of Judicature at Madras

Dated : 13..07..2007

Coram

The Honourable Mrs. Justice PRABHA SRIDEVAN

C.R.P. (PD) Nos.1690 to 1692 of 2005

1. Ramiah

2. Chakravarthy .. Petitioners versus

R. Palaniappan .. Respondent in C.R.P.1690/2005 1. R. Palaniappan

2. Chittibabu

3. Pappiah 4. Govindasamy 5. Gopi .. Respondents in 6. Shanthi Balaraman C.R.Ps.1691 & 1692/2005 [R-2 to R-6 not necessary parties] - - - - -

PRAYER : C.R.P. No.1690 of 2005 against the fair and decretal order dated 19.7.2005 passed in I.A. No.1110 of 2004 in O.S. No.596 of 2004 by the learned Principal District Judge, Chengalpattu. C.R.P. No.1691 of 2005 against the fair and decretal order dated 22.4.2004 passed in O.S. SR. No.3419 of 2001 by the learned Principal District Judge, Chengalpattu. C.R.P. No.1692 of 2005 against the fair and decretal order dated 8.4.2004 passed in I.A. No.228 of 2004 in O.S. SR. No.3419 of 2001 by the learned Subordinate Judge, Poonamallee. - - - - -

For Petitioner : Mr. T.V. Ramanujam, Senior Counsel for M/s. T.V. Krishnamachari For Respondent-1 : Mr. T.R. Rajagopalan, Senior Counsel for M/s. P. Veeraraghavan O R D E R



An agreement holder, who is aware that he has to pay a sum of Rs.17,96,693/- as court fees on his plaint seeking specific performance, has paid just Rs.300/- along with the plaint; re-presented the same with a delay of 1090 days, which was condoned by a court without jurisdiction; and paid the deficit court fees after three years. The defendant questions the legality of the proceedings by moving these civil revision petitions under Article 227 of the Constitution of India.

2. The suit was filed by the first respondent herein on 27.3.2001. On that date, the suit agreement was not filed along with the plaint and it was returned for that purpose. In paragraph 6 of the plaint, it is stated, "... the plaintiff is paying a sum of Rs.17,96,693/-", but only Rs.300/- was paid along with the plaint. The plaint was returned on 28.3.2001 to explain how the suit is maintainable without the sale agreement. Thereafter, the plaint was re-presented on 7.4.2004 with a delay of 1090 days. In the affidavit filed in support of the petition for condonation of the delay, the first respondent has stated that he did not know that the plaint had been returned for filing the suit sale agreement. The first respondent had also filed a suit, O.S. No.231 of 2001 for permanent injunction restraining the petitioners herein from alienating the suit property. That suit was taken on file and summons were served. The first respondent also pleads that the petitioners contacted him and agreed to complete the sale transaction and requested him not to precipitate the matter. Therefore, he waited for an amicable settlement until 27.3.2001, but did not want to take the risk of allowing the suit to become time-barred without filing the same in time and therefore, he took a decision to file the suit in time, paying the court fees, but at the same time expected the petitioners to complete the transaction by paying the sale consideration. He was anxious that in the event of the petitioners amicably settling the matter, he should not take the risk of spending Rs.18,23,150/75 as court fees. According to the first respondent, he was having the original sale agreement with him. But he apprehended that filing of the original agreement may not be safe and hence he had filed copies thereof, but on account of passage of time, he had forgotten about the same. In the first week of March 2004, when he contacted his counsel, he came to know that the plaint papers had not been re-presented for want of the original sale agreement. He traced the sale agreement from papers which were unconnected with the above suit. He obtained change of vakalat on 17.3.2004 and entrusted the matter to the present counsel. Since the time for re-presentation had expired on 11.4.2001 and the plaint had not been re-presented in time, he filed the application for condonation of the delay of 1090 days in re-presenting the plaint, to enable him to prosecute the suit. By this time, the Tamil Nadu Civil Courts Amendment Act 2003 (Act No.1 of 2004) had come into force. Therefore, the Subordinate Judge, Poonamallee no longer had the pecuniary jurisdiction to try the suit. However, the learned Subordinate Judge condoned the delay on 8.4.2004 and returned the plaint for re-presentation before the competent court, giving the first respondent one month's time for the same. The plaint was re-submitted to the District Court and the District Court returned the plaint with the endorsement "deficit court fee to be paid" on 22.4.2004, giving the first respondent one month's time to pay the same. On 5.5.2004, the deficit court fee was paid and the suit was taken on file as O.S. No.596 of 2004.

3. The petitioners filed I.A. No.1110 of 2004 for rejection of the plaint on the ground that a person who pays deficit court fee deliberately is not entitled to any discretion in his favour and for other reasons, under Order VII, Rule 11 and Sections 94(b) and 151 of the Code of Civil Procedure. To this, a counter has been filed setting out the same averments that have been mentioned in the application for condonation of the delay. This application was rejected. The petitioners have, therefore, filed C.R.P. No.1690 of 2005 against the order passed in I.A. No.1110 of 2004 for rejection of the plaint; C.R.P. No.1691 of 2005 against the docket order passed by the learned District Judge on 22.4.2004 for payment of the deficit court fee; and C.R.P. No.1692 of 2005 against the order passed in I.A. No.228 of 2004, by which the delay of 1090 days in re-presentation of the plaint was condoned.

4. The learned senior counsel appearing for the petitioners submitted that when an application for condonation of delay is filed, the orders passed thereon should reveal the satisfaction of the learned Judge that the reasons given for condoning the delay are sufficient. A party who deliberately files the plaint with the minimum court fees knowing fully well that he ought to pay much more is not entitled to thereafter take advantage of the court's return of the plaint for payment of deficit court fees. The learned Subordinate Judge had no jurisdiction to condone the delay, when by that time, he no longer had the pecuniary jurisdiction to entertain the suit. The learned District Judge ought to have considered the factors brought to his notice in the application under Order VII, Rule 11, C.P.C. and ought not to have dismissed the application purely on the ground that since the delay has been condoned, there is nothing more to be decided. No application was filed for extension of time to pay the court fees.

5. The learned senior counsel appearing for the respondents would submit that until 22.4.2004, the first respondent was not called upon to pay the deficit court fee and under Order VII, Rule 11, C.P.C. the court can reject the plaint only if 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; and in this case, admittedly the court fee was paid within the time granted by the court and therefore, once the court fees has been paid, it would date back to the date of presentation of the plaint and the plaint is deemed to have been filed on the date of its presentation, duly stamped. Learned senior counsel submitted that for invoking the power for making up the deficiency of court fees, Section 149, C.P.C. does not require any application, and the court may in its discretion allow the person to pay the deficit court fee at any stage and on such payment, the document shall have the same force and effect as if such fee has been paid in the first instance. The learned senior counsel submitted, therefore, that the learned Subordinate Judge was quite right in condoning the delay in re-presentation before returning the plaint to be re-submitted before the appropriate court, since for the limited purpose of receiving the plaint, he continued to retain the jurisdiction because otherwise, the litigant would have nowhere to re-present the plaint. The learned senior counsel further submitted that the judgments referred with regard to deficit court fees on appeals may not be applicable to the present case because this case deals with deficit court fee on plaint.

6. Several decisions were cited by both sides and the matter was reserved for orders on 15.6.2007. On that day, the order of a Division Bench of this Court dated 28.6.2005 passed in C.M.P. No.8915 of 2005 in C.M.A. SR. No.92149 of 2003 with regard to payment of deficit court fee (to which I am a party) was given to the counsel for both sides so that they can make their submissions again after going through the said order. Thereafter, the matter was listed again finally on 6.7.2007. The learned senior counsel appearing for the petitioners would submit that this decision would squarely apply to the present case in view of Section 107(2), C.P.C. which confers on the appellate court the same powers as are conferred and imposed on courts of original jurisdiction. Therefore, the decision of the Division Bench with regard to appeals applies with equal force to suits as well. The learned senior counsel appearing for the first respondent would, however, differ on this issue and would submit that all the decisions relied on by the Division Bench in the said order arose in appeals and therefore, that order is distinguishable.

7. Let us first look at the decisions cited by the petitioners. In 2005 (5) C.T.C. 401 [S.V. Arjunaraja vs. P. Vasantha], a suit was filed on a promissory note in time, but with a deficit court fee. The suit was returned and re-presented two times without paying the deficit court fees. After a lapse of six months, the deficit was made up. The defendant filed an application to reject the plaint under Order VII, Rule 11, C.P.C. This application was dismissed by the trial court on the ground that the court had accepted the payment of the deficit court fees and numbered the suit. The High Court, in revision, set aside the order. Though this would appear to be identical to the case on hand, the learned senior counsel appearing for the first respondent would submit that in this case, the plaint was returned on 13.12.2002 requiring the first respondent to pay the deficit court fee within one month. It was re-presented without the deficit court fee and again it was returned and thereafter, it was re-presented again and finally, the deficit court fees was paid. But in the present case, the plaintiff had paid the court fees within the time prescribed.

8. In 2003 (2) M.L.J. 305 [K. Natarajan vs. P.K. Rajasekaran], a Division Bench of this Court laid down the procedure to be followed with regard to payment of deficit court fees and the guidelines are extracted hereunder :- "(1) Sec.149 of Code of Civil Procedure is a proviso to Sec.4 of the Tamilnadu Court Fees and Suits Valuation Act, 1955. (2) The word 'document' employed in Sec.149 of Code of Civil Procedure would include plaint also. (3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third day (excluding the date of presentation so also the intervening holidays). (4) If the suit is presented on the last date of limitation affixing less Court-fee, than the one mentioned in the details of vaulation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court-fee. (5) In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court-fee, shall order notice to the defendants and consider their objections, if any. However, such notice is necessary in cases where the plaintiff has paid almost the entirety of the requisite Court-fee and the Corut is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike. (6) The discretion referred to in Sec.149 of Code of Civil Procedure is a judicial discretion and the same has to be exercised in accordance with the well established principles of law. (7) But however, in cases where the time granted to pay the deficit Court-fee falls within the period of limitation, the defendant need not be heard. (7A) In case where the plaint is presented well within the period of limitation with deficit Court-fee and the Court returns the plaint to rectify the defect giving some time (2 or 3 weeks), which also falls within the period of limitation, but the plaint is re-presented paying deficit Court-fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial Court-fee (not almost entirety) at the first instance, before condoning the delay in paying the deficit Court-fee. (8) In cases where part of the time granted to pay the deficit Court-fee falls outside the period of limitation and the deficit Court-fee is paid within the time of limitation( i.e., the plaint is re-presented with requisite Court-fee), the Court need not wait for the objections of the defendant and the plaint can be straight away numbered. (9) The Court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court Fee Act or where he could not pay the required Court-fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial Court-fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in. But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying Court-fee, awaiting the result of some other litigation, expecting compromise, etc.). (10) If the Court had exercised its discretion without issuing notice, then it is open to the defendant to file application under Sec.151 of Code of Civil Procedure for prpper relief. It will be open to the defendant to file a revision under Art.227 of Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law (as laid down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law."

9. On the side of the respondents, the following judgments were relied upon. In 32 I.L.R. 305 (F.B.) [Gavaranga Sahu vs. Botokrishna Patro], a Full Bench held that a suit is not barred when the plaint is insufficiently stamped and is presented within the period of limitation, though the stamp deficiency is made good after such period. In (1970) 1 S.C.C. 769 [Mannan Lal vs. Mst. Chhotaka Bibi], the Supreme Court held that when the deficit stamp is paid on an insufficiently stamped memorandum of appeal, the appeal must be treated as pending from the date of presentation both for the purpose of limitation and for the purpose of sufficiency as to court-fee. The Supreme Court observed as follows : "The words used in that judgment are no doubt of wide import. But however that may be in the case before us there can be no difficulty in holding that an appeal was presented in terms of Order 41 Rule 1 of the Code inasmuch as all that this provision of law requires for an appeal to be preferred is the presentation in the form of a memorandum as therein prescribed. If the court fees paid thereon be insufficient it does not cease to be a memorandum of appeal although the court may reject it. If the deficiency in the fees is made good in terms of an order of the court, it must be held that though the curing of the defect takes place on the date of the making good of the deficiency, the defect must be treated as remedied from the date of its original institution."

10. In A.I.R. 1951 All 64 (F.B.) [Wajid Ali v. Isar Bano], it was held as follows : "Section 149, Civil P.C., has to be read as a proviso to S.4, Court-fees Act, in order to avoid contradiction between the two sections. As a result of reading the two sections together in this light, the law may be stated thus : (1) Ordinarily a document insufficiently stamped is not to be received, filed, exhibited or recorded in a Court. (2) When, however, an insufficiently stamped document is presented to the Court, the Court has to decide whether it will exercise its discretion in allowing time to the party presenting the document to make good the deficiency. (3) If it decides that time should not be granted, it will return the document as sufficiently stamped. (f) If it decides that time should be granted, it will give time to the party to make good the deficiency, and in order to enable the party to make good the deficiency within the time allowed, the Court will tentatively for that limited purpose receive the document. (5) If the deficiency is made good within the time fixed, the document is to be deemed to have been presented and received on the date on which it was originally filed. (6) If the deficiency is not so made good, the document is to be returned as insufficiently stamped by virtue of S.4 of the Act." "Section 149 empowers the Court to grant time for making good the deficiency 'in its discretion'. The discretion must be a judicial discretion and cannot be arbitrary. There is no uniform practice followed by the High Court of Allahabad of liberally construing the words 'in its discretion'. The other High Courts too have not been uniform. All that can be laid down on how the discretion is to be used is that (a) where insufficiency in court-fee is due to a bona fide mistake in calculating the amount payable, or to circumstances beyond the control of the party concerned, e.g., robbery, non-availability of court-fee stamps etc., the Court will, not doubt, use its discretion in favour of the litigant; and (b) where a litigant is able to pay full court-fee and yet presents a document insufficiently stamped, either because he expects a compromise in the case or he wants to await the result of some other litigation, or because he negligently failed to bring sufficient money with him for paying the court-fee, or for any similar reason; or where he is guilty of contumacy or mala fides, e.g., when he wants to harass the other side by continuing a litigation, time will not be granted. Cases lying in between the two extremes will have to be decided according to their own circumstances." "... If, however, further circumstances are shown which satisfy the Court that the inability to pay court-fee has been caused by circumstances beyond the ligitant's control, or if substantial amount of court-fee has been paid and a comparatively small amount remains to be paid thus showing the bona fides of the litigant, time may be extended."

11. In A.I.R. 1938 Madras 542 [Venkanna vs. Atchutaramanna], it was held as follows : "Where a plaint is written upon paper insufficiently stamped, the Court is bound to give the plaintiff time to make up the deficit; only when he fails to comply with the order, the Court can reject the plaint; that the plaint is presented on the last day of the period of limitation makes no difference, that is the effect of O.7, R.11, Civil P.C. Again, whether the payment of insufficient fee was by design or due to inadvertance, the Court is bound by the mandatory terms of it, to give effect to this provision. This being the law, the Court's action in giving the plaintiff time originally cannot be questioned. But once time is fixed, it is no longer open to the plaintiff to demand as a matter of right that the time should be extended. The power to grant extension vests in the Court either under S.148 or S.149, Civil P.C. Under either of those sections, the question is one of the Court's discretion and not the plaintiff's right. It is obvious that the Court must exercise its discretion not capriciously but judicially and reasonably." In 51 M.L.J. 90 [Kolisetti Basavayya vs. Mittapalli Venkatappayya], it was held as follows : "The Court has discretion to extend to any limit the time within which the deficient Court-fee on a plaint may be paid; and if the fee is paid within the time fixed, the plaint will stand good as on the date of its presentation. When the plaintiff pays the deficient Court-fee beyond the time fixed, two courses are open to the Court. It may either reject the plaint or accept it. Both courses are within its discretion with which a superior Court will not as a rule interfere. When the plaintiff pays the deficient Court-fee beyond the time fixed and has not asked the Court to extend the time for payment, but the Court nevertheless excuses the delay and receives the fee, the natural inference is that it intended to extend the time and in effect did so." In A.I.R. 1950 Madras 769 [Venkataseshamma vs. Ranganaryakamma], it was held as follows : "Where a Judge of the High Court sitting in the Admission Court excuses the delay in payment of court-fee on the memorandum of appeal without notice to the other side, it is open to the other side to file an application to the High Court to dismiss the appeal on the ground that the delay ought not to have been excused." In A.I.R. 1938 Madras 560 [Durairangam Pillai vs. Govindarajulu Naidu], it was held as follows : "Where a plaint insufficiently stamped is filed on the last day of the period of limitation and is returned by the Court allowing certain time for payment of the deficient court-fee, the suit is not barred if the proper court-fee is paid within the time allowed by the Court but beyond the period of limitation for the suit, because reading O.7, R.11 together with S.149, the payment of the deficient court-fee within the time allowed by the Court has the same effect as if the court-fee had been paid in the first instance, that is on the date when the plaint was first presetned."

12. In 1977 (2) Andhra Weekly Reporter 117 [Kishwari Begum vs. Quadiri Begum], it was held thus : "Section 148, Civil Procedure Code, does not contain any words of limitation to indicate that the power granted to the Court to extend the time can be exercised only during the pendency of the proceedings before it, or that an application for extension should be filed before the expiry of the period fixed by its order. It merely empowers the Court to enlarge the period prescribed by it for doing of any act, from time to time, in its discretion, even though the period originally fixed has expired. It is a procedural provision and it should be interpreted so as to allow the Court to meet the several eventualities, arising from time to time to do justice between the parties and not in such a narrow manner as to stifle its powers which may result in defeating the ends of justice". In A.I.R. 1940 Madras 934 [Venugopal Pillai vs. Thirugnanavalli Ammal], it has been held as follows : "Even where the Court improperly and without sufficient cause grants time for payment of court-fee after the plaint has been presented, the effect of the grant of such time is that the plaint takes effect as if it had been presented along with the full court-fee on the date of its first presentation and no question of limitation can arise where the plaint as originally presented is within time." In A.I.R. 1994 Kerala 405 [V.O. Devassy vs. Periyar Credits], it was held thus : "Where the suit was filed on the last day of limitation, and the deficiency in Court-fee was made good subsequently as required by the Court, the plaint was not liable to be rejected under O.7, R.11(c) as the discretion contemplated in S.149 was exercised by the Court in favour of the plaintiff. That direction having been complied with, the payment of the deficit Court-fee shall be deemed to have been made on the date of presentation of the plaint." In A.I.R. 1953 S.C. 431 [Ganesh Prasad vs. Narendra Nath], it has been as follows : "The question of payment of court-fees is primarily a matter between the Government and the person concerned and therefore, where the High Court in the exercise of its discretion allows the appellant to amend his memorandum of appeal and grants time for payment of deficient court-fee under S.149, the other party cannot attack the order on ground that it takes away his valuable right to plead the bar of limitation."

13. With regard to the power of the Subordinate Court's jurisdiction, in 1988 (1) Law Weekly 176 [A.T. Mathavan vs. S. Natarajan], it has been laid down thus: "Until the amendment is allowed, it is only the Court which has entertained the plaint earlier that must decide all incidental questions, arising in the lis, including the question of allowing or disallowing the amendment of the plaint. If by virtue of allowing an amendment of the plaint, the Court which entertained the plaint loses its jurisdiction, the proper course would be for the Court to return the plaint for presentation to the court, which would have jurisdiction to entertain the suit as per the amended plaint. Only on the amendment being allowed, the jurisdiction which the Court initially had gets lost. Only after that contingency happens, the question of returning the plaint for presentation to proper court would arise. If the amendment sought for is to be disallowed, certainly the plaint as it was presented has got to be prosecuted. The other possibility of the court to which the plaint alone with the amendment application is to be transferred, rejecting the amendment application cannot be ruled out, and in such a case, the plaintiff will be in a quandary. That should not be the result of the exercise of powers by the Courts on the question of amendment. Hence the court which originally entertained the plaint can certainly decide the question of amendment even though by allowing the amendment, it may lose its jurisdiction, and as a result of it, the plaint may have to be returned for presentation to the proper court, having jurisdiction as per the amended plaint."

14. Insofar as condonation of delay in genuine cases is concerned, the following observations of the Division Bench in the order dated 28.6.2005 referred to earlier are relevant : "We hope that in future, the Transport Corporations and Insurance Companies will file their appeals with the correct court fee and if an occasion arises to file an application for condonation of delay in payment of deficit fee, it should be only where there has been a bona fide mistake in calculation or some equally justifiable cause. We will definitely condone the delay, however long it may be, if there is a just and sufficient cause. In the present case, there is no justification for exercise of discretion and the legal provisions referred to by the learned counsel for the petitioner can also not be invoked to hold in favour of the petitioner."

15. As far as the question of pecuniary jurisdiction is concerned, in 2007 (3) C.T.C. 144 [V.N. Subramaniyam vs. A. Nawab John], this Court has held thus : "As regards pecuniary jurisdiction, the Court below erroneously allowed the two Interlocutory Applications on 22.1.2004 since the City Civil Courts and Chennai City Civil Court Amendment Act, 2003 and Tamil Nadu Act 1 of 2004 came into force even as on 8.1.2004. Thus, on and from 8.1.2004, the Subordinate Court, Bhaveni is ousted from the pecuniary jurisdiction to try a Suit for the value of Rs.13,31,663/- and it is an abuse of process of law." This decision squarely applies to the case on hand.

16. Section 149 of the Code of Civil Procedure reads as follows : "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."

17. The one important factor that must not be lost sight of while dealing with this matter is that the suit for specific performance is filed by an agreement holder for sale of the property belonging to another who might resist the claim on various grounds, and if the court in its discretion finds that the agreement holder is entitled to the equitable remedy, it executes the sale deed on behalf of the unwilling vendor. Therefore, the court against the will of the real owner of the property executes the sale deed and conveys the title over the property to the person who comes to the Court for relief. It is for this reason that courts repeatedly say that the plaintiff in a suit for specific performance should come to court absolutely without any mala fides, or in other words, the phrase used repeatedlty is, "comes to court with clean hands". The first respondent in this case not only filed the suit for specific performance, admittedly he appears to have filed a suit for injunction also to restrain the petitioners from alienating the property. In the suit for injunction, it is enough if he pays a sum of Rs.300/- as court fees. But in the suit for specific performance, he would have to pay court fees ad valorem depending on the value of the property, which in the instant case comes to RS.17,96,693/-. The agreement holder who comes to court asking for the relief of specific performance should first satisfy the court that he is at all times ready and willing to perform his part of the contract, i.e., that he not only has the intention to purchase the property, but he also has the capacity to purchase it. It is true that he need not, in the words used in common parlance, "jingle the coins", but definitely his financial capacity should be proved. And when he files the suit, he places all the facts available with him before the court to enable it to decide whether he is entitled to the discretion. In the present case, the respondent filed the suit without the sale agreement. The plaint averment is that he knew that he had to pay Rs.17,96,693/- as court fees and yet, he paid only Rs.300/-. For not filing the suit agreement in time, his case is that he apprehended that the original agreement, if filed, may not be safe, but that he kept the original agreement along with other papers and completely forgot about the same and with the passage of time, he forgot all about it. According to him, his counsel never informed him about the return of the plaint on 28.3.2001. It is his admission that he filed the suit for injunction, which was numbered as O.S. No.231 of 2001, on 30.4.2001. This suit was presented on 27.3.2001.

18. The reason for the first respondent not paying the entire court fees at the initial stage along with the plaint when it was presented on 28.3.2001 are as follows : "Though I waited for an amicable settlement until 27.3.2001, I did not want to take the risk of allowing the suit to become time barred without filing the same in time. Hence, I took a decision to file the suit in time paying court fee and expected the respondents to complete the sale consideration. I was anxious that in the event of the respondents amicably settling the matter with me in terms of the agreement, I should not take the risk of spending Rs.18,23,150/75." Though the first respondent has mentioned the value of court fees as Rs.18,23,150/75, when actually the court fee is Rs.17,96,693/-, this figure that he mentions is what he believes to be the correct court fees payable, since later in the same affidavit, he has referred to the value of the suit property at Rs.2,43,08,400/-, whereas in the plaint, he valued it as Rs.2,39,55,900/-. This may account for the difference in the court fees payable on the plaint and the court fees mentioned in the affidavit. It is also admitted by the first respondent that the suit for permanent injunction was pending service in the District Munsif Court and therefore, he was under the bona fide impression that his counsel would have taken necessary steps for getting this suit numbered by the Sub-court. The averments in paragraph 5 of his affidavit filed in support of I.A. 228 of 2004 indicate that he was represented by the same counsel in the District Munsif Court in the suit for permanent injunction and before the Sub-court in the suit for specific performance. Therefore, it is difficult to swallow the bald allegation that due to his business work and other family circumstances, he was not aware for three years regarding the progress of his suit and suddenly he came to know about the return of the plaint for want of the sale agreement. It is his case that he had retained the original sale agreement with him apprehending that if he filed it, it would not be safe. But it is also admitted by him that he had kept it with his other papers unconnected with the suit and due to passage of time, he forgot about the same. Can a person who wanted to keep the original suit sale agreement in safe custody mix it up with other papers and forget about it? The reasons given by the first respondent for not filing the suit agreement along with the plaint are unacceptable. As regards non-payment of court fee, as seen from the extract of the plaint above, he knew how much court fees had to be paid but he did not pay it only because he expected the first respondent to complete the transaction by paying the sale consideration and did not want to take the risk of spending huge amount as court fees. Therefore, what he has done is to file a speculative suit throwing in just Rs.300/- as court fees and waiting for the court to return the plaint for payment of deficit court fees at a later point of time.

19. As per the agreement, the sale was to be completed on or before 31.3.1998. The suit was filed on 27.3.2001, just before the last date of limitation. In 2003 (2) M.L.J. 305 (supra), where guidelines have been laid down which have been extracted above, the Division Bench indicated what should be done when the suit is presented on the last date of limitation affixing less court fees. Then, the plaintiff is obliged to file an affidavit giving reasons for not paying the requisite court fees and if an affidavit is filed to that effect, the court shall, before exercising its discretion, to grant him time to pay the deficit court fees, order notice to the defendant and consider their objections, if any. The Division Bench also qualified this direction by stating that such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite court fees and the court is satisfied on affidavit that the mistake happened due to some bona fide reasons such as calculation mistake or the like. Guideline No.4 of the above judgment requires an affidavit to be filed where less court fees is paid, but this suit was filed before that, so we will assume that non-filing of the affidavit will not affect the first respondent's case. But when the court granted time to pay the court fees in 2004, the guidelines of the Division Bench were there before the court below. It is not as if the first respondent had paid almost the entirety of the requisite court fees. On the contrary, the respondent had to pay almost the entirety of the requisite court fees, having paid a mere sum of Rs.300/- out of a total sum of Rs.17,96,693/-. The affidavit filed by him clearly shows that the reasons are not bona fide. He admits that he did not want to take the risk of paying the entire court fees. Guideline No.7A in 2003 (2) M.L.J. 305 (supra) tells us what what should happen when the plaint is presented well within the period of limitation with deficit court fees and the court returns the plaint to rectify the defect, which also falls within the period of limitation, but the plaint is re-presented paying the deficit court fees after the period of limitation, then notwithstanding the fact that substantial court fees has been paid, the court should hear the defendant before condoning the delay in paying the deficit court fees. Guideline No.9 would say that the court should exercise its judicial discretion while considering whether time should be granted or not and in cases where the plaintiff wilfully harasses the defendant like wilful negligence in paying the court fees and awaiting the result of some other litigation or expecting compromise etc., then that would not be a bona fide conduct of the plaintiff. Guideline No.10 indicates that if the court had exercised this discretion without issuing notice, it was open to the defendant to file a revision under Article 227 or file an application under Section 151, C.P.C.

20. All the decisions cited above in which it is held that on payment of deficit court fees, the defect will be cured and the plaint will be dealt with as a plaint sufficiently stamped are not really relevant to this case since in this case, what we have to see is whether the court should have given the plaintiff the time to pay the deficit court fees and whether the court should have afforded the defendant a hearing before doing so. Applying the law laid down by the Division Bench in the judgment cited above, the petitioners deserved a hearing before the court fees was directed to be paid since the suit was filed almost on the last date of limitation with a pittance of a court fees. The court below having exercised its discretion which has resulted in injustice to the petitioners, the petitioners are right in bringing it to the notice of this Court under Article 227.

21. The learned Subordinate Judge who condoned the delay in re-presenting the plaint was not right in doing so and the decision in 1988 (1) L.W. 176 (supra) does not help the respondents. There, the plaint was amended and on amendment, the jurisdiction which the court initially had was taken away from it and only after the amendment was allowed, the question of returning the plaint for presentation to the appropriate court would arise. As observed by the learned Judge in that case, if the amendment was disallowed, then that court continued to have the jurisdiction. Therefore, it was held that the court which originally entertained the plaint can certainly decide the question of amendment even though by allowing the amendment, it may lose its jurisdiction. That does not apply to the present case. The court which was asked to exercise the judicial discretion for condonation of delay in re-presentation had no jurisdiction to exercise the discretion. The court ought to have returned the plaint stating that in view of the Tamil Nadu Civil Courts Amendment Act 2003, it could not receive the plaint and it should be presented before the appropriate court. Thereupon, the plaintiff could have preferred an application before the appropriate court which had the jurisdiction and which could have decided the question. Here, discretion to condone the delay was exercised by a court which did not have the jurisdiction and therefore, the order condoning the delay is clearly erroneous and without jurisdiction. 2007 (3) C.T.C. 144 is squarely on the point. Further, the manner in which the court dealt with an application to condone the delay of 1090 days in re-presentation of the plaint is unsatisfactory. The docket merely says "Delay Condoned. In 2003 (2) M.L.J. 305 (supra), the learned Judges say, "In the other petition (i.e.,) to excuse the delay in paying deficit Court-fee, the learned Judge passed the order in two wors as 'delay excused'. On the face of it, it is clear that the learned Judge has not exercised his discretion, but passed the order for mere asking. It is unfortunate the learned Judge has not even looked into the affidavit filed in support of the petition to condone the delay in paying deficit Court-fee. In the said affidavit, the plaintiff has stated that he has produced the original vouchers in the criminal proceedings and hence the delay occurred. We have already pointed out, along with the plaint the plaintiff produced only xerox copy of the voucher. Certainly he would have handed over the plaint or xerox copy of the letter dated 19.4.1982 in the criminal Court. That being so, nothing prevented the plaintiff to re-present the plaint within the time allowed. Also to be noted is, the plaintiff has been a Financier and it is not his case that at any point of time he was in need of money. It is crystal clear from the facts and circumstances that plaintiff thought by harassing the defendant by resorting to criminal proceeding, he can extract the money that he desired and in the meantime he never wanted to spend the amount by paying Court-fee. Thus, there is utter lack of bona fides on the part of the plaintiff. He seems to have taken the Court just for a ride and it can be well said that he abused the process of law." In this case, the explanation for the delay is unacceptable for the reasons stated above and also because the first respondent was contemporaneously prosecuting the suit for injunction.

22. A.I.R. 1940 Madras 934 (supra) was a case where after the decree was passed an appeal was filed and in that appeal, a ground was raised that the suit was barred by limitation because the court gave improperly and without sufficient cause, time for payment of court fees. At the stage of appeal, the appellate court was not inclined to consider this objection. Here, even before the suit is tried, this objection is raised and 2003 (2) M.L.J. 305 (supra) clearly says that it is possible for the defendant who is aggrieved to approach this Court under Article 227. The decision in 1977 (2) Andhra W.R. 117 (supra) is to the effect that Sections 148, 149, 151 and Order XX, Rule 3, C.P.C. give the power to the court to extend the time and this power is without any limitation that such time can be extended during the pendency of the proceedings or that an application for extension should be filed before the expiry of the period fixed by its order. But however, the same judgment says that this is a procedural provision and it should be interpreted so as to allow the court to meet the several eventualities arising from time to time to do justice between the parties and not in such a narrow manner as to stifle its powers which may result in defeating the ends of justice. In the present case, the order condoning the delay of 1090 days and the direction to pay the deficit court fees, which was a huge amount, three years after the presentation of the plaint ignoring 2003 (2) M.L.J. 305 is actually in favour of the person who has abused the process of law.

23. In A.I.R. 1938 Madras 542 (supra), again, the learned Judge has said that the time when the deficit court fees is paid is really immaterial, but the learned Judge also stresses that the court must exercise its discretion not capriciously, but judicially and reasonably. The following paragraph is relevant : "There is nothing on the record to show that the Court in granting the extension, applied its mind to the question at all. The suit was filed on the last day of the 12 years' period, by one who was gambling in litigation. Then it is suggested that this plea was not taken in the Courts below. How are the defendants to blame when they were not apprised of the order made behind their back? However, I do not propose to rest my judgment on this ground, as giving effect to the maxim omnia praesumuntur rite esse acta, I should presume that there was a real exercise of discretion - See 4 Pat 190 [Raghunandan Sahay vs. Rama Sunder Prasad], 1 Pat L.J. 420 [Gaya Loan Office Ltd. vs. Awath Behari Lal], 3 Pat L.J. 74 [Ram Sahay Ram Pande vs. Lachmi Narain Singh], 56 I.C. 47 [Suraj Pal vs. Utim Pande], A.I.R. 1937 Pat 550 [Baijnath Prasad vs. Umeshar Singh], 24 C.L.J. 88 [Priyanath vs. Meajan] and 51 M.L.J. 90 [Basavayya vs. Venkatappayya]. Is there anything in the order condoning the delay of 1090 days to show that there was a real exercise of discretion, especially when on his own admission the first respondent was gambling in litigation?

24. The decision in A.I.R. 1938 Madras 560 (supra) which deals with court fees being paid within the time allowed, but beyond the period of limitation for suit will not result in the suit being time barred will not come to the aid of the first respondent in view of the peculiar facts of this case.

25. In A.I.R. 1975 A.P. 109 [Revenue Divisional Officer, Vijayawada vs. T. Laxminarayana], a Division Bench of the Andhra Pradesh High Court disapproved of payment of token court fees and filing the appeals before the period of limitation. I do not think it is necessary to restrict the observations of the Division Bench to appeals alone. They apply a fortiori to suits as well.

26. In A.I.R. 1939 Madras 1 [In re Padmanabha Ayyangar (S.B.)], which dealt with the professional misconduct of an advocate of the court who paid a court fees of Rs.50/- where Rs.142/- had to be paid may not strictly apply to this case since there, the matter was with regard to the traditions of the profession. But both the learned Judges have disapproved of the undesirability of the practitioners lending themselves to the practice of deliberately filing appeals understamped. In this case, the counsel should not have agreed to file the suit with just Rs.300/-, where a sum of Rs.17,906,693/- had to be paid.

27. In (1970) 1 S.C.C. 769 (supra), a Division Bench of this Court held that where a judge of the High Court sitting in admission court condones the delay in payment of court fees on the memorandum of appeal without notice to the other side, it is open to the other side to file an application to the High Court to dismiss the appeal on the ground that the delay ought not to have been excused. In that case, the appeal was presented with a court fees of Rs.10/- though what was payable was Rs.1,342/70. An application was filed for condonation of delay in payment of the deficit court fees. The delay was of nearly two years. This was condoned without notice to the other side. The other side, on coming to know of the same, approached the court with an application that the delay should not have been condoned. The reason why the delay was condoned in that case was that the appellant could not raise enough money to pay the court fees. But the materials on record revealed to the court that she had actually sold property for the purpose of meeting the expenses in the present appeal and therefore, the Division Bench felt that even the ground for excusing the delay in payment of the court fees cannot be sustained. It was again contended before the Division Bench that since the delay was excused by a learned Judge, only a review should be filed. But the Bench rejected this objection stating that it was open to the other side to file an application that delay ought not to have been condoned. Of course, in that case, a large amount of court fees had been paid and therefore, the Division Bench did not disturb the order.

28. In 51 M.L.J. 90 (supra), the learned Judge held that when a plaintiff pays the deficient court fee beyond the time fixed for it, the court may either reject the plaint or accept it and both courses are within its discretion with which a superior court will not, as a rule, interfere. It is true that as a rule, the superior court will not interfere. But where injustice or illegality is writ large, I do not think this Court exercising its jurisdiction under Article 227 should refrain from interference. In A.I.R. 1951 All. 64 (supra), four questions were raised, "(1) Whether S.4 Court-fees Act, is subject to, or controlled by, the provision of, and principles underlying, S.6(2) of that Act? (2) Whether the provisions of S.4, Court-fees Act, override the provisions of S.149, Civil P.C., so far as the power of the High Court to extend time for making good the deficiency in court-fee is concerned? (3) In view of the longstanding practice of this Court, should not the words 'in its discretion' in S.149, Civil P.C., continue to receive a liberal interpretation? (4) Should poverty or inability to pay full court-fee at the time of filing an appeal be regarded as a sufficient ground for the exercise of the discretion of the Court in extending time under S.149, Civil P.C., or under S.6(2), Court-fees Act, if the latter is applicable to High Courts?", and these were answered as,

"(1) No

(2) No

(3) In view of the fact that there is nop long standing practice of the Court, the question does not arise. (4) Poverty or inability to pay full court-fee at the time of filing an appeal can be regarded as a sufficient ground for the exercise of the discretion of the Court in special circumstances but not otherwise."

29. In the present case, the delay in re-presentation was huge. The reasons given for the delay even on the face of it do not merit acceptance. Yet, the delay was condoned. After three years of prosecution of plaint, the court permitted the first respondent to pay the deficit court fees, which was almost the entire court fees payable, without notice to the other side, contrary to 2003 (2) M.L.J. 305 (supra). It is definitely open to the petitioners to complain to this Court that absolutely no justifiable reasons were made out and that there was a glaring infirmity and abuse of process of law, and this Court is bound to examine the grievance of the petitioners.

30. I find that the condonation of the delay of 1090 days in re-presenting the plaint by the learned Subordinate Judge is without application of mind. But more importantly, the learned Subordinate Judge had no authority nor the jurisdiction to decide that question. He knew that the jurisdiction was taken away from him in view of the Amendment Act. When the plaint was re-presented, all he had to do was direct the respondents to return it to the appropriate court. The order without jurisdiction is totally void. It must be noted that even in the application for condonation of delay, the first respondent was aware that he had to pay deficit court fees. He should have filed an application for reception of the deficit court fees. He does not do so. He waits until the day when the court will wake up to the fact and direct him to pay the court fees, which it does on 22.4.2004. On this date, at least the court should have considered under Section 149, C.P.C. whether it should allow in its discretion, the plaintiff to make up the deficit court fees since he had come to court on paying only Rs.300/- as against a sum of Rs.17,96,693/-. This also, it does not do, but merely grants time for him to make good the deficit. This direction to pay the deficit court fees on 22.4.2004 is also untenable and therefore, can be corrected under Article 227 of the Constitution of India.

31. For all these reasons, C.R.P. No.1692 of 2005 stands allowed. Consequently and for the reasons stated above, C.R.P. Nos.1690 and 1691 of 2005 are also allowed with costs quantified at Rs.10,000/-. Consequently, C.M.P. No.19111 of 2005 in C.R.P. No.1690 of 2005 is closed. July 13, 2007. ab

Index : Yes

Website : Yes

To

1. The Principal District Judge,

Chengalpattu.

2. The Subordinate Judge,

Poonamallee.

ab

PRABHA SRIDEVAN, J.

CRPs.1690 to 1692 of 2005

Delivered on

13..07..2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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