Meera Verma vs Sukh Dev Kumar

Sharad Kumar Sharma, J

Admittedly, the petitioner is a defendant in a suit for declaration and permanent injunction as instituted by the plaintiff/respondent before the Civil

Judge (J.D.), Dehradun, which was registered as Suit No. 38 of 2012. On issuance of notice, the defendant/petitioner has put in appearance and has

filed his written statement denying the plaint’s averment.

In the plaint, the respondent/plaintiff herein had in para 18 raised the following pleading with regards to the valuation of the suit and the payment of

court fees:-

◌

0 18,000 -

0 200 -

0 18,000 0 500

700

The defendant/petitioner had in his written statement initially vaguely denied the contents of para 18 of the plaint with regards to the valuation, but at

a later stage, the pleadings with regard to the response to para 18 of the plaint, later statement was amended questioning thereof, that the suit has been

under valued and consequently, the court fees to be paid was short, it was valued based on market value of the property, but on what basis it was

done has not been clarified by the petitioner. On exchange of pleadings, the learned Trial Court has framed Issue No.3 with regards to the valuation of

the suit.

The learned Trial Court vide its order dated 12.03.2013, while deciding Issue No.3 had considered the impact of Section 7(IV-A) and Section 7(V-

A) (V-B) of the Court Fees Act, came into conclusion that the plaintiff was required to value the suit as per Section 7 (IV-A) and accordingly the

plaintiff was directed to deposit the enhanced court fees. The respondent/plaintiff could not comply with the order within time provided. As a result of

which, the plaintiff filed an application Paper No.57(Ga), wherein he has prayed for that he may be permitted to carry on the amendment in

compliance of the order dated 12.08.2013. Though, this prayer made in the application for extension to time to comply the order was opposed by the

respondent. The Court held that the application for extension of time Paper No.57(Ga) deserves to be allowed subject to payment of cost of Rs.500/-

and the next date fixed was 20.01.2014. On 20.01.2014, the plaintiff who was supposed to comply the order dated 12.08.2013 as extended on

03.01.2014 read with the order could not appear and the learned Trial Court on its own without there being an application filed by the defendant under

Order 7 Rule 11 (C) proceeded to dismiss the suit.

Being aggrieved against the said order, the plaintiff/respondent preferred Civil Appeal No.113 of 2014. The learned Appellate Court vide its order

dated 30.09.2016, proceeded to allow the appeal and set aside the order dated 20.01.2014 and has remitted the matter fixing 02.11.2015 for deciding

the issue.

The learned counsel for the defendant/petitioner submits that the appellate court on its own could not have extended the time period which the

respondent had not availed in pursuance to the order dated 03.01.2014 for depositing the amount of court fees and for depositing the amount for court

fees as settled by the order dated 12.08.2014. He submits that in view of 148 of the Code of Civil Procedure there cannot be extension of time beyond

30 days which reads as under:-

“148. Enlargement of time- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the

Court may, in its discretion, from time to time, enlarge such period [not exceeding thirty days in total], even though the period originally fixed or

granted may have expired.â€​

The case of the petitioner is that once the time has been granted by the Court to do an Act required to be done in pursuance to the order of the

Court or under the law it ought to have been done within the period prescribed and the Court can exercise its power of enlargement of time to a

maximum period of 30 days in total. He submits that once the order dated 12.08.2014 read with order dated 03.01.2014 was not complied with even

looking to the impact of Section 148 of the Code of Civil Procedure at least the appellate court could not have extended the time period.

Though apparently the argument as extended by the learned counsel for the petitioner seems to be very alluring but at this stage, it may not carry

any substance for the reason hereunder. The interpretation of Section 148 and the restrictions imposed by it with regards to the extension of time for

an action to be taken on the orders of this Court has to be pragmatically dealt with and that is why the Hon’ble Apex Court in the case of Salem

Advocate Bar Association T.N. vs. Union of India reported in 2005 (6) SCC 344 and D.V. Paul vs. Manisha Lalwani reported in 2010 (8) 546 has

held that power to extend time then though might have been settled under Section 148 of CPC, but still the Court does not loose its inherent power to

pass an order to meet the end of justice by invoking the provision of Section 151 of Code of Civil Procedure and thus the Apex Court has held that the

time period of 30 days can be extended.

Secondly, there is another aspect which is to be taken into consideration while interpreting the impact of Section 148 of the Code of Civil

Procedure. The language of Section 148 is a restriction regulatory in nature or an embargo in its applicability for the courts it is not available as a

defence for the other side to obstruct the powers of court to extend time exercising inherent power.

In that view of the matter also, the enlargement of time in the instant case would not prejudice the right but the Court would rather facilitate in

meeting the ends of justice by permitting the parties to get lis adjudicated on merits.

There is yet another aspect to be gone into. This Court cannot be oblivious of the fact while rendering this judgment with reasoning that the

petitioner before this Court is a defendant. On an issue pertaining to the valuation of the suit or court fees payable is an exclusive prerogative between

the Court and the plaintiff. The defendant as such has got no right to raise a question against an issue deciding the settlement of court fees to be paid

by the plaintiff. The only rider which is attached to this legal preposition it is that if at all the defendant would have any say it could be in a situation

where as a consequence of enhancement of the valuation of the suit it would be ousting the jurisdiction of the Court where the suit has been instituted

this is not the case of the defendant either before the court below or before this Court in the writ petition.

The learned counsel for the respondent has placed reliance under Order 7 Rule 11, the provisions of Order 7 Rule 11 CPC do not vest with a suo

motu power with the Court to pass an order because on 20.01.2014, when the case was listed before the court below the only recourse available to

the court in the absence of the petitioner was to dismiss the suit itself for the absence of the plaintiff for want of prosecution. The Court could not

have on its own and that too in absence of the plaintiff invoke order 7 Rule 11 without prayer being made by the respondent to the said effect.

For the reasons assigned above as given by the appellate court since looking to the tenacity of the appellate order under challenge still the issue

pertaining to the payment of court fees is yet to be decided after the remittance of court fees by the impugned appellate judgment there is no prejudice

caused to the petitioner to approach the writ court under Article 227 of the Constitution of India.

Hence, the present writ petition fails and is accordingly dismissed. There would be no order as to costs.