Smt. Krishna Kumar vs Ashwani Kumar and Others

G.C. Garg, J.—Plaintiff-respondent filed a suit against the petitioner and four others, for possession by way of specific performance of a contract directing the defendants or their authorised agents to execute sale deed/transfer papers in his favour pertaining to plot No.1306, Sector-4, Panchkula on the basis of agreement dated 31.7.1987 and for permanent injunction restraining the defendants or their authorised agents from alienating the said plot. The suit appears to have been filed on 31.7.1990 i.e. On the last day of limitation which is three years for such suits. In the suit, it was averred that value for purposes of jurisdiction is Rs. 55,000/- upon which court fee of Rs. 6570/- is payable. But the suit was filed only by fixing a court fee of Rs. 2/-. Since the plaint was insufficiently stamped, the plaintiff along with the suit also moved an application dated 31.7.1990 seeking time to deposit the court fee and stamps. The contents of the said application are as under :"

"Application for seeking time to deposit court fee and stamps"

Sir,

That the plaintiff is going to file the above noted case under the specific performance of Relief Act which requires court fee but due to the shortage of time the plaintiff could not purchase the court fee today since the Treasury is closed at 1.00 P.M.

It is, therefore, requested that the suit of the plaintiff may please be entertained and the applicant may please be allowed time so that he may affix the court fee and stamps.

Dated 31.7.1990 Ashwani Kumar Applicant through counsel Sh. L.C. Gupta, Ambala City. 3l.7.1990"

Learned Senior Subordinate Judge, Ambala before whom the suit was presented, passed the following order on same date:-

"Present: Proxy counsel applicant.

Now to come up for filing of court fee on 8.8.1990."

As per the allegations, contained in the Grounds of Revision, the suit thereafter was taken up on various dates and in almost all the orders, it was noticed that court fee not filed and the case to come up for filing of court fee. Two zimni orders deserve to be noticed here :

"6.2.1991 : Court fees not filed. Now to come up for filing of court fee on 4.4.1991. Long date due to heavy pending files.

4.4.1991: Case received by transfer. It be checked and registered. To come up on 8.4.1991 for reply and consideration."

It seems that the suit was transferred to some other court and the transferee court seems to have taken up the suit for the first time on 4.4.1991 and it was on that day that an application was moved by defendant No.1 with a prayer that plaint may be rejected as the plaintiff had failed to supply the requisite stamp papers within the time fixed by the court. A perusal of the order dated 4.4.1991 passed by the transferee court shows that the case was adjourned to 8.4.1991 for filing reply to the said application and consideration thereon. On 8.4.1991 the court fee was filed and the matter was adjourned to 11.4.1991 for consideration, apparently, on the application of defendant No.1 moved, on 4.4.1991 for rejection of plaint. Trial court by its order dated 14.8.1991, which on a thorough reading appears to be a totally ambiguous and vague order, allowed plaintiffs application dated 31.7.1990 for extension of time to file/supply the court fee and in a way rejected the application of the present petitioner for rejection of plaint though it is not specifically mentioned in the order. The operative part of the said order deserves to be noticed here :

"The plaint shows that suit had been valued for the purposes of court fee and jurisdiction at Rs. 5500/- and on it stamp of Rs. 6570/- was assessed. So this is not a case where the relief sought was under valued, however, the plaint was written on sufficiently stamped paper in such a case if the plaintiff had been required by the Court to supply the requisite stamp paper within a time fixed by the Court failed to do so, the plaint is liable to be rejected. As stated above the transferee court had extended the time upto 4.4.1991. This suit was received in this Court. No specific order in this regard was passed on that day. Defendant suo moto appeared on 4.4.1991 and stated that the plaint should be rejected. On 8.4.1991 the plaintiff filed the requisite stamp fee. In view of all I hold that the plaintiff is not at fault and so I allow his application. Let the case proceed further."

It is this order of the trial court which has been impugned by defendant No.1 in this revision petition.

Learned counsel for the petitioner submitted that admittedly, the suit was filed on 31.7.1990 and even if the stand of the plaintiff that the suit was being filed by affixing a court fee of Rs. 2/- only as the stamp paper could not be purchased due to shortage of time because of closure of the Treasury, is taken to be correct, it was the duty of the plaintiff to supply the requisite court fee/stamp paper immediately on the next date of hearing or at the most within the time allowed by the court and on his failure to do so, the plaint was liable to be rejected. Learned counsel further submitted that the plaintiff was granted at least fifteen opportunities i.e. from 31.7.1990 to 4.4.1991 to pay the court fee but he did not file the court fee and thus he intentionally failed to comply with the orders of the court. Learned counsel also submitted that in view of the interim orders passed by the trial court from 31.7.1990 to 4.4.1991, at the most it can be said that the plaintiff was granted time to file the requisite stamp papers upto 4.4.1991. It was further submitted by the learned counsel for the petitioner that a perusal of the interim order dated 4.4.1991 would clearly go to show that the court had not fixed any further time for filing the requisite stamp paper by the plaintiff and the requisite stamp paper was supplied by the plaintiff on 8.4.1991 in the absence of any time being granted/fixed by the court. It is also submitted that since the petitioner had moved an application on 44.1991 for rejection of the plaint and on being alarmed by the adverse consequences to be followed in view of prayer made by the petitioner, the plaintiff hurriedly filed the requisite stamp paper even before any order could be passed on petitioners'' application. To buttress the contentions, learned counsel referred to the provisions of Order 7 Rule 11 of the CPC and further contended that time for supplying the deficient stamp paper could only be extended/fixed by the Court by recording reasons there for and after being satisfied that the plaintiff was prevented by any cause of exceptional nature from correcting the valuation or supplying the requisite stamp papers and that refusal to extend such time would cause grave injustice to him. It was thus lastly submitted that the relevant provisions of Order 7 Rule 11 of the Code which are mandatory in nature, have been totally ignored by the, trial Court and therefore, the trial court has committed material irregularity in allowing the plaintiff to file the requisite stamp paper. Learned counsel for the petitioner also placed reliance on two judgments in support of his latter contention, Jabar Singh (Died) and Ors. v. Shadi (Died) and Ors. (1975)77 P.L.R. 186 and S. Wajid Ali Vs. Mt. Isar Bano Urf Isar Fatma, .

After hearing learned counsel for the petitioner and considering the facts and circumstances brought before me, I am of the opinion that this revision petition deserves to succeed. First of all it is necessary to notice the relevant provisions relating to rejection of plaint:

"Order 7 Rule 11 of the CPC :

The plaint shall be rejected in the following cases :-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and 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;

(d) where the suit appears from the statement in the plaint to be barred by any law;

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."

It is thus crystal clear from the above provisions of the Code that where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, the plaintiff may supply the requisite stamp paper within a time that may be fixed by the Court and on his failure to do so, the plaint is liable to be rejected. In the instant case as noticed above, the suit was filed on 31.7.1990 by affixing a court fee of Rs.2/-only though as per the valuation of the suit for the purposes of court fee and jurisdiction which was undisputedly rightly assessed at Rs. 55,000/-, a court fee of Rs.6570/-was payable. Since as per the version of the plaintiff, the stamp paper was not readily available due to closure of the treasury, the same could be supplied within the time fixed by the Court. No doubt the plaintiff along with the suit also filed an application to bring the above fact to the notice of the Court and further requested that the suit may be entertained and he may be allowed time to affix the court fee and stamps etc. Order was passed on the application on that very day requiring the plaintiff to pay the court fee by 8.8.1990. File was taken up on 7.8.1990 as the Presiding Officer was to proceed on leave on 8.8.1990. Case was adjourned to 8.9.1990 for paying court fee. Court fee was not paid on any of the two dates, though the reason to pay the court fee later on was that on 31.7.1990 the treasury had closed at 1.00 P.M. The court, however, went on passing interim orders saying, "Court fee not filed. Now to come up for filing of court fee on the adjourned date" and thus from the interim orders passed from time to time, it can at the most be concluded that the trial court went on granting/extending time for supplying stamp paper on the date one after the other. In other words the court was fixing the time for doing the needful to be done by the next date. It is apparent from the perusal of interim orders passed by the trial court from time to time extending time for supplying of the stamp papers that the time had been extended in a quite casual manner without recording any reason whatsoever therefore and further without recording its satisfaction that the plaintiff was prevented by any cause of an exceptional nature from supplying the requisite stamp papers and that refusal to extend such time would cause grave injustice to him. Thus in the absence of any reason, what to talk of a valid reason, the time for making up deficiency in court fee was illegally extended. However, even if the matter is seen from the spirit of the interim orders of the trial court and it is presumed that the court had been validly and for justifiable reasons, extending the time to the plaintiff for supplying the stamp papers, the extension of time could at the most be accepted upto the date for which the suit was adjourned on 6.2.1991 and it was ordered, "Court fee not filed. Now to come up for filing of court fee on 4.4.1991". Thereafter right from 4.44991 or on 4.4.1991 itself, there is not even a slightest mention about granting/extending or fixing any time for supplying the stamp paper. Admittedly, the plaintiff did not supply the stamp paper on 4.4.1991 and it was only supplied on 8.4.1991 when the petitioner herein had already moved an application on 4.4.1991 for rejection of plaint on the ground that the plaintiff had failed to supply the requisite stamp paper within a time fixed by the Court even if it is to be accepted that the court was impliedly extending the time by way of interim orders. In the circumstances it can thus be concluded that even if it be accepted that the trial court had been extending time, the stamp paper having been supplied on 8.4.1991 the plaint deserved to be rejected as the time can be said to have been extended at the most upto 4.4.1991 and it was not extended thereafter at all. Once it was so, the trial court could not on a later date extend the time by allowing the plaintiff''s application seeking time to supply/file court fee/stamp papers.

Section 149 of the CPC empowers the Court to grant time for making good the deficiency ''in its discretion'' and the words ''in its discretion'' have from time to time been construed by different High Courts in their own way. A Full Bench of Allahabad in S. Wajid Ali''s case (Supra) while considering the question as to how the discretion in such matters is to be exercised, observed as under:-

"All that can be laid down 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, no 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 other similar reason; or where he is guilty of contumacy or malafides e.g. when he wants to harass the other side by continuing a litigation, time will not be granted.

There may be cases lying between these two extremes. But no general rule can be laid down about them and they will have to be decided according to their own circumstances."

The Full Bench further commenting on the discretion of the court observed thus:

"The question whether 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 u/s 149 can be answered only with reference to the facts of a particular case."

..... ..... ...... ....... A mere allegation that a party was unable to pay court fee on the date when he presented an insufficiently stamped document is not enough for the exercise of discretion in his favour. If, however, further circumstances are shown which satisfy the Court that the inability to pay court fee has been caused by circumstances beyond the litigants''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."

Later on, the observations made by the Full Bench of Allahabad High Court were followed by this Court in Ajey Textile v. The British India Corporation (1969)71 P.L.R. 31 (S.N.) : ILR 1970 P&h 127 and it was observed :

"Unless circumstances are shown which satisfy the Court that inability to pay court fee has been caused by circumstances beyond the litigant''s control or substantial amount of court fee has been paid showing the bona fides of the litigant, time could not be extended."

Thus, in the light of the observations of the Full Bench of Allahabad Court and of this Court on the subject as noticed above, the question as raised in this revision can be narrowed down to say, whether the trial court was justified in extending the time for supplying the requisite stamp papers, to the plaintiff? Proviso to Rule 11 of Order VII of the Code itself forbids the Court in extending the time unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from supplying the requisite stamp-papers within the time fixed by it and that refusal to extend such time would cause grave injustice to the plaintiff. If the facts and circumstances of this case are visulised in the light of the observations of the Full Bench judgment of the Allahabad High Court, the plaintiff was required to show that his inability to pay the full court fee was due to circumstances beyond his control and to show his bona fide to supply the requisite stamp paper, he was further required to show that the circumstances owing to which he could not pay full court fee were prevailing till he arranged and supplied the requisite stamp papers. Failure of the plaintiff to satisfy the court in that behalf renders him to be guilty of mala fide and he does not deserve the extension of time for supplying the requisite stamp paper. In the instant case, as noticed already, the plaintiff filed a suit for possession by way of specific performance on 31.7.1990 by affixing a court fee of Rs. 21- only. He also moved an application seeking time to deposit the court fee and stamps by alleging that the court fee could not be purchased due to shortage of time and closure of Treasury on that day. If non-payment of full court fee due to closure of Treasury on 31.7.1990 when the suit was presented, was the only reason and if the plaintiff really wanted to make up the deficiency and had a bona fide intention to do so, the court fee could be paid immediately on the following date of hearing or at the most he could seek extension of little more time by mentioning the circumstances preventing him to pay the requisite court fee. The plaintiff in the present case could not show any circumstances much less of an exceptional nature by which he was prevented from paying the requisite court fee for over a period of nine months during which the suit was adjourned on at least fifteen occasions for that purpose. In the circumstances, I am of the opinion that the trial court erred in allowing plaintiffs application as has been done by the impugned order dated 14.8.1991, because there was no extension of time after 4.4.1991 and in any case, the impugned order cannot be sustained, for no reasons have been recorded by the trial court for extending time for supplying the requisite stamp papers. The revisions petition is, therefore, allowed and the impugned order is set aside. The necessary corollary that must follow in the acceptance of this revision is that the plaint deserves to be rejected being insufficiently stamped. So ordered. No costs.