Sri. P.A. Nagaraja Guptha vs Dr. S. Subramanyan and Another

G.C. Bharuka, J.—This appeal has been filed by the Plaintiff against the judgment and decree dated 15.11.1995 passed in O.S. No. 5770

of 1995 on the file of the City Civil Judge, Bangalore (CCH 11), rejecting the plaint under Order VII, Rule 11(c) of the Code of Civil

Procedure(in short the ""CPC"") on the ground that the Plaintiff has not paid the deficit court fee within the time granted.

It is not in dispute that the Plaintiff had filed the suit with deficit court fee in a sum of Rs. 55,777/-. Accordingly, the court below by its order

dated 30.9.1995, permitted the Plaintiff to pay deficit court fee by 28.10.1995. On 28.10.1995, when the matter was again placed before the

court, a detailed order was passed granting time till 15.11.1995 at the request of the Plaintiff to pay deficit court fee with a clear warning that if the

deficit court fee was not paid within 15.11.1995 then the plaint will stand rejected. On 15.11.1995, the Advocate for the Plaintiff filed another I.A.

for extension of time to pay the court fee taking a plea that the requisite stamp papers were not available with the stamp vendor, but the court

below did not accept the prayer and consequently rejected the plaint under Order VII, Rule 11(c) Code of Civil Procedure.

Mr. T.S. Amar Kumar, learned Counsel appearing for the Appellant, submits that the court below ought to have entertained the plea for

extension of time for payment of deficit court fee for the facts stated before it by way of memorandum of facts drawn by the learned Advocate for

the Plaintiff. In support of his submission, he placed reliance on Section 148 and Order VII, Rule 11(c) Code of Civil Procedure.

Before adverting to the submissions made by the learned Counsel for the Appellant/Plaintiff, it is better to reproduce Section 148 and Order

VII, Rule 11(C) of the CPC as substituted by the Karnataka Amendment w.e.f. 30.3.1967 with the proviso. It reads thus.

Section 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, even though the period originally fixed or granted may have expired.

Order VII, Rule 11. Rejection of Plaint: The plaint shall be rejected in the following cases:

(a) xxx xxx xxx xxx

(b) xxx xxx xxx xxx

(c) where the relief claimed is properly valued, but the court- fee actually paid is insufficient and the Plaintiff does not make good the deficiency

within the time, if any, granted by the court.

(d) xxx xxx xxx xxxx

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp papers 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 extend such time would

cause grave injustice to the Plaintiff.

Proviso to Rule 11 of Order VII CPC was inserted by CPC (Amendment) Act, 1976. The objects and reasons for the said insertion are as

follows:

OBJECTS AND REASONS

Clause 60-Sub-clause (viii).-There is a divergence of judiciary union as to whether the time fixed by the Court under Rule 11 may be extended by

it u/s 148. A proviso is being added to Rule 11 to provide that the time fixed by the Court for the correction of the valuation or for the supply of

requisite stamp-paper shall not be extended unless the Court for reasons to be recorded, is satisfied that the Plaintiff was prevented by any causes

of an exceptional nature from correcting the valuation or supplying the stamp paper within the time fixed by the Court and that refusal and extend

the time would cause grave injustice to the Plaintiff.

Though Section 148 CPC empowers the Court to extend time for payment of deficit court fee but now the said discretion vested in the Court

has been subjected to restrictions as incorporated in the proviso to Rule 11 of Order VII Code of Civil Procedure. The proviso restricts the

Court''s power of extending time by laying down that such extensions can only be granted if two conditions are present, namely (i) the cause for

preventing from correcting the valuation or supplying the requisite stamp papers is of exceptional nature, and (ii) refusal to extend time would result

in grave injustice.

A noticed above, proviso to Rule 11 of Order VII was inserted in the CPC by Act 104 of 1976. The purpose of insertion of the said proviso

was obviously for expediting disposal of cases. Under the proviso, the Court cannot extend time for payment of deficit court fee unless it 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 refusal to extend such time would cause grave injustice to the Plaintiff. The two

conditions incorporated in the proviso are ex facie cumulative and the Court can exercise its discretion of extending time for payment of deficit

court fee, if and only if, for reasons to be recorded, it finds that both the said conditions exist.

In the present case, the court below by its order dated 28.10.1995 for detailed reasons had clearly directed that deficit court fee has to be paid

by 15.11.1995 failing which the plaint shall stand rejected. Nothing has been placed before the court below to show that the Plaintiff has taken

effective steps for procuring stamp papers between 28.10.1995 and 15.11.1995 so as to deposit the deficit court fee within the time fixed by the

court below. That being the situation, the plea put forth by the Advocate for Plaintiff in the memorandum of facts filed by him in his hand that the

Plaintiff had approached the stamp vendor only on 15.11.1995 for purchase of stamp paper and on being asked, the stamp vendor replied that

because of rush stamp papers for worth Rs. 55,777/- could not be procured on the same day does not satisfy the pre-requisites incorporated in

the proviso to Rule 11 of Order VII Code of Civil Procedure. The cause set out on behalf of the Plaintiff cannot be said to be of exceptional

nature from any point of view.

The Plaintiff very well knew that the Court had directed him to make good the deficit court fee by 15.11.1995. Therefore, he was required to

take the necessary steps for procuring stamp paper much before the last date. It is well known that the court fee stamps of high denomination

cannot be expected to be available with the stamp vendor as and when desired since those have to be procured from Treasury. Therefore, the

cause made out for non-compliance of the court order cannot be said to be of exceptional nature. Obviously, the Plaintiff was guilty of laches. For

these reasons, the court below was not competent to exercise its discretion u/s 148 CPC and therefore has rightly refused on the facts of the

present case.

In the above view of the matter, in our opinion, no interference is called for. Accordingly, the appeal is dismissed.