Kolisetti Basavayya and Others vs Mittapalli Venkatappayya and Another

Wallace, J.—This Civil Revision Petition is against the decision of the Additional District Munsif, Guntur, declining to grant a review of an

order by his predecessor excusing delay in re-presentation of a plaint. The facts were as follows: A plaint was presented on 20th April, 1923, with

a one rupee stamp, the proper stamp being Rs. 142. It was returned on 4th June, 1923, for two reasons, (1) to pay deficient Court-fee, and (2) to

compare the copy of accounts. Seven days'' time was given. On 16th June, 1923, a further extension of time of 10 days was given. The plaint was

not re-presented until 4th March, 1924. On that date a petition was put in by the plaintiff u/s 151, Civil Procedure Code, with an affidavit by the

pleader''s clerk stating that the plaint had been mislaid and asking that the delay in re-presentation be excused. The deficient Court-fee was put in

and paid on the same day. On 5th March, 1924, the District Munsif, without giving notice to the other side made an order on that petition

excused"". On 20th August, 1925, the present District Munsif was asked under Order 47, Rule 1, Civil Procedure Code, by the defendant to

review that order and he has declined to do so, and the defendant comes up with this petition.

The first point urged is that there was really no definite order by the first District Munsif indicating that he gave his mind to the long delay in

paying up the deficient Court-fee, and therefore it was open to his successor to consider that matter de novo. Certainly the affidavit filed in support

of the application for excusing delay does not make any mention of the payment of the Court-fee and was not put in u/s 149, Civil Procedure

Code, but u/s 151, Civil Procedure Code. Nevertheless I think it must be held that the matter was brought to the notice of the District Munsif and

that he exercised his mind consciously thereon and decided to excuse the delay in paying up the deficient Court-fee. That was the chief question in

the matter of excusing the delay in representation and I must take it that the District Munsif applied his mind to it.

That being so, it was open to his successor to treat that order as one open to review by him if proper and legal grounds for review were made

out. The Lower Court, however, seems to regard the matter as one which it had no power to review. That view seems to be wrong. But since the

matter was within the discretion of the first District Munsif, and since it has not been brought to my notice that any new facts have appeared since

that order was passed, there is no ground for interference with the Lower Court''s refusal to review unless the first District Munsif had no

jurisdiction whatever to excuse delay. Even so, the more proper course would have been for the petitioner to have come up here at once against

the order excusing delay. Had he done so, he would have been able to urge with more propriety that the District Munsif should have given notice

to him and heard him before he passed his order excusing delay. That he did not do, and the order was passed on 5th

March, 1924. He did not come up here against it, and even his petition for review was belated, having been put in on 20th August, 1925. In

such circumstances I would not interfere unless it is an absolute rule of law that such condonation of delay is illegal.

This is the second point urged before me, namely, that the District Munsif had no option but to dismiss the plaint since the deficient Court-fee

was not paid within the time allowed. Order 7, Rule 11, Civil Procedure Code, is called in aid, and variousulings have been cited before me.

Order 7, Rule 11 declares that when a plaintiff does not pay the deficient Court-fee within a time to be fixed by the Court the plaint shall be

rejected. That the Court must fix a time within which the deficient Court-fee shall be paid and has no discretion to refuse to fix it, is settled law. The

Court also has discretion to extend the time already fixed. Section 149, enacted in order to set at rest a matter on which the case-law was

conflicting, implies that the Court may, in its discretion, at any stage, allow a party to pay the deficient Court-fee. But this will not override Order 7,

Rule 11 in the sense that Section 149 gives the Court any discretion to refuse, to grant the time which Order 7, Rule 11 says it shall grant see

Achut Ramchandra v. Nagappi Bab Balgya I.L.R.(1913) B. 41 and Jiwan Das v. Khushabi Ram (1917) 39 I C 766. This seems to make it clear

that the Court has discretion to extend to any limit the time within which the deficient Court-fee may be paid, and that if the fee is paid within the

time fixed the plaint shall stand good as on the date of its presentation. What is the law then when the party pays 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? I think the only reasonable

interpretation is that the Court has implicitly, although not explicitly, extended the time. Two courses are open to the Court in such cases, either it

may reject the plaint or it may accept it, and both courses are within its discretion. That is, whether it rejects or accepts a superior Court will not as

a rule interfere. When the Court has accepted a belated payment but has not explicitly extended the time, the natural inference is that it intended to

extend the time and in effect did so see Gopal Prasad Bhagat v. Rajendra Lal Panja (1915) 34 I.C. 625, Maria Thangatkammal v. Iravatheswara

Aiyar (1915) 28 I.C. 504, Priyanath v. Meajan (1915) 34 C.L.J. 88 , Amir Hussain, Khan v. Nanak Chand (1910) 12 C.L.J. 62 and Rajkishori

Koer v. Madan Mohan Singh ILR (1903) C. 75. An extension of time to quote authorities was held to imply an extension of time to pay. To the

other effect, namely, that the Court has no discretion to admit payment after the time fixed is a ruling in Brahmomoyi Dasi v. Andi Si I.L.R.(1899)

C. 376 under the old Code. In Midnapur Zamindary Co., Ltd. v. Secretary of State for India ILR (1916) C. 352 the Appellate Court refused to

interfere with an order by the Lower Court rejecting the plaint because the additional Court-fee had not been paid within the time fixed. Possibly

the language used is too strong when the learned Judges say that the Subordinate Judge had ""no other alternative but to reject the plaint."" Section

149 is not referred to in the judgment. The Full Bench case in Padmanund Singh v. Anant Lal Mis-ser (1906) ILR 34 C. 30 was under the old

Code and therefore the discretion given by Section 149 was not considered. In Budhan Sha v. Sita-nath Sha (1910) 13 C.L.J. 78 it was held that

Section 149 will not avail if the payment is not made within the time fixed under Order 7, Rule 11. In that case the prior Court had first dismissed

the suit and on review held that Section 149 gave it discretion to excuse and condone the delay. The ground on which the learned Judges held that

Section 149 will not avail was that it only applies to cases where the payment has been made within the time fixed, and that it gives no discretion to

a Court to condone a payment made after the time fixed. But, with respect, I think that this is giving too narrow a construction to the wording of

Section 149. That section is one of the general provisions of the Code not liable to annulment or alteration by any proceedings under Part X, and if

there is any conflict between such a general provision and a rule under the first schedule, I take it that the general provision must prevail. The

section appears to me to give a Court wide discretion, once the time for payment has been fixed, either to allow payment at any stage or to

disallow it. I am not prepared to hold that the order of the District Munsif excusing delay in re-presenting the plaint was illegal.

It would no doubt have been better in the present case if the first District Munsif had given notice to the petitioner and heard him before excusing

the delay, but his omission to dose certainly not an unimpeachable ground for review and can not therefore be used here to justify interference with

an order passed on review. I am therefore not able to hold that the Lower Court in refusing to interfere with the order of its predecessor excusing

delay committed any error of law. I therefore decline to interfere and dismiss this petition with costs.