B.R. Vinoth vs K. Vetrivel

S. Nagamuthu, J.—The Petitioner is the Defendant in O.S. No.24 of 2008 on the file of the learned Subordinate Judge, Nilgiris at Udhamandalam. The Respondent is the Plaintiff.

The Respondent has filed the Suit for recovery of a sum of Rs. 1,36,000/-. The Suit was presented before the Court below on as Court-fee. Seeking extension of time for paying the balance Court-fee, the Plaintiff filed I.A. No.8 of 2008 before the Court below. That Petition was allowed and one month''s time was granted by the Court below to enable the Plaintiff to pay the deficit Court-fee. This order was passed on 5.1.2008. The Plaint was accordingly returned. The Plaint should have been re-presented along with Court-fee on or before 5.2.2008. But, it was re-presented on 7.2.2008 along with deficit Court-fee. Thus, there was a delay of two days time in re-presenting the Plaint, the Plaintiff filed LA. No.118 of 2008 in this regard under Sections 148 & 151 of the Code of Civil Procedure seeking to, condone the delay of two days in re-presenting the Plaint. That Petition was allowed by order dated 4.3.2008.

Thereafter, the Suit was taken on file and summons was issued to the Petitioner herein. He appeared before the Court below and filed Written Statement on 13.11.2008. Issues were framed on 10.12.2008. The trial was taken up on 19.3.2009. But, the Petitioner/Defendant did not appear before the Court and therefore, he was set ex parte and ex parte decree was passed. Subsequently, the Petitioner herein filed LA. No. 448 of 2009 seeking to set aside the ex parte decree. The said Petitioner was allowed on 1.9.2009. Again the trial was taken up on 9.10.2009 on which date, PW1 was examined and documents were also marked. When. the case was taken up for trial on 9.10.2009, again the Defendant remained absent and he was set ex parte and ex parse decree was passed. Thereafter, the Petitioner/Defendant filed yet another Application in LA. No.850 of 2010 seeking to set aside the ex parte decree. That was allowed by order dated 12.8.2011. Thereafter, once again, when the Case was taken up for trial, PW1 was examined on 5.5.2011 and documents were also marked. On that date, for the first time, the Defendant filed I.A. No. 492 of 2011 under Order 7, Rule 7 of the Code of Civil Procedure for rejection of the ''Plaint. That Petition was dismissed by the Court below, by order dated 24.2.2012. Challenging the same, the Petitioner/Defendant is before this Court with the present Civil Revision Petition.

I have heard the learned Counsel appearing for the Petitioner and the learned Counsel appearing for the Respondent. While reiterating the grounds raised in the Civil Revision Petition, the learned Counsel for the, Petitioner submits that though the delay was only for two days in re-presenting the Plaint along with deficit Court-fee, the said delay was not properly explained. The learned Counsel further submitted that the delay was condoned even without notice to the Petitioner herein and the lower Court was not right in condoning the delay of two days in re-presenting the Plaint. It is on this ground, the present interlocutory Application in I.A. No.492 of 2011 was filed seeking rejection of the Plaint as the same is barred by limitation. According to the learned Counsel, the Lower Court was not right in dismissing the interlocutory Application. In order to substantiate his contention, the learned Counsel has relied upon the Judgment of the learned Single Judge of this Court in Dhanalakshmi Financiers v. Soundarammal, 2008 (5) CTC 438: 2009 (1) MLJ 1328.

The learned Counsel appearing for the Respondent vehemently opposed the contentions of the learned Counsel appearing for the Petitioner and submitted that in view of the decision A. Nawab John v. V.N. Subramaniain, 2012 (4) CTC 206, the Trail Court has got power to condone the delay in re-presenting the Plaint after payment of deficit Court-fee. The learned Counsel further submitted that the delay in re-presenting was hardly two days and the same was duly explained. The learned Counsel further submitted that the order condoning the delay has not been challenged and for the reason, according to the learned Counsel, the Civil Revision Petition deserves to be dismissed.

I have considered the submissions of the learned Counsel appearing for either side and perused the records carefully.

In the judgment A. Nawab John v. V.N. Subranzanianz, 2012 (4) CTC 206 cited supra, the Honourable Supreme Court had the deal with an identical issue. In that Case, the Suit was filed for specific performance of agreement of sale. The Plaint was returned for payment of deficit Court-fee. The Plaintiffs re-presented the Plaint on three different occasions with long delay and also with deficit Court-fee. All the Applications filed by the Plaintiffs for condoning the delay in re-presentation due to payment of deficit Court-fee were allowed by the Trail Court. Challenging the order of the Trail Court condoning the delay, a Civil Revision Petition was filed by the Respondent therein before the High Court. The High Court allowed the Civil Revision Petition and struck off the Plaint. Aggrieved by the same, the Plaintiffs have filed the Civil. Appeals before the Honourable Supreme Court. While considering the above facts, the Honourable Supreme Court in Para 28 of the order, has held that the Trial Court has got power to condone the delay in re-presenting the Suit. Para 28 of the said judgment reads as follows :

"Therefore, from the language of Section 149, CPC it follows that. when a Plaint is presented to a Court without the payment of appropriate Court-fee payable thereon, undoubtedly the Court has the authority to call upon the Plaintiff to make payment of the necessary Court-fee. Such an authority of the Court can be exercised at any stage of the Suit. It, therefore, appears to us that any amount of lapse of time does not fatter the authority of the Court. to direct the payment of such deficit Court-fee. As a logical corollary, even the Plaintiff cannot be said to be barred from paying the deficit Court-fee because of the lapse of time."

A reading of the above judgment of the Honourable Supreme Court will go a long way to come to bring home that the law is well settled that the Court has got power to condone the delay in re-presenting the Plaint along with the deficit Court-fee.

The next contention of the learned Counsel for the Petitioner is that though the delay is only two days, the same was not explained properly. The learned Counsel would submit that the Lower Court allowed the Interlocutory Application without notice to the Petitioner herein. In my considered opinion, these two arguments are not available to him in this Civil Revision Petition. The delay was condoned after considering the averments made in the Affidavit filed in support of I.A. No.118 of 2008. Though the said Interlocutory Application was allowed condoning the delay of two days, of course, it was passed without notice, the Petitioner has not challenged the said order. The said order has become final. Therefore, it is not open to the Petitioner to raise the above two grounds.

The learned Counsel has relied on the judgment of this Court reported in Dhanalakshmi Financiers v. Soundarammal, 2008 {5) CTC 438 : 2009 (1) MLJ 1328, cited supra. In that case, the order condoning the delay was challenged. But, in the. case on hand, as I have already pointed out, the order condoning the delay has become final.

As I have already narrated, the Petitioner/Defendant filed Written Statement on 13.1.2008 and thereafter, on two occasions, he remained ex parte and ex parte decrees were passed and they were later on set aside on appropriate applications filed by the Petitioner herein. The issues were framed on 10.12.2008 and the case was listed for final hearing on 19.3.2009. I.A. No.492 of 2011 came to file on 11.9.2011. Thus, for about four years, the Petitioner kept mum and did not raise his little finger against the order condoning the delay.

In view of all the above facts and circumstances, in my considered opinion, this Petition is only an attempt to drag on the proceedings on the part of the Defendant. I do not find any merit at all in the Petition and it fails and accordingly, it is dismissed. No costs. The connected Miscellaneous Petition is also dismissed.