Veerapathira Pillai and Irulappa Pillai vs Veluchamy

S. Palanivelu, J.—The petitioners are defendants in O.S. No. 104 of 2003 on the file of Sub-Court, Paramakudi. The respondent is the plaintiff who filed a suit for specific performance of contract of an agreement of sale allegedly executed by these petitioners on 18.06.1999. It is agreed in the sale agreement inter alia that within two months from the date of the execution of the sale agreement, the defendants had to execute the Sale Deed in favour of the respondent herein. Since they did not execute, the respondent filed the suit. He presented the plaint on 16.08.2002 on payment of Court fee of Rs. 16/- on the plaint against Rs. 11,057/- payable for the suit. The plaint was returned on 19.08.2002 for payment of deficit Court-fee. Even without payment of deficit Court fee, he represented the same on 09.09.2002. Again, it was returned by the Court on 16.09.2002 to comply with earlier direction. Even thereafter, without complying the same, the respondent represented the plaint on 21.10.2002. On 23.10.2002 also, the Court returned the plaint for the same reason. On all the above said occasions, he did not pay the deficit Court fee. On 08.09.2003, he represented the plaint with the payment of full Court fee along with an application to condone the delay of 284 days in representing the plaint into the Court. Finally, the plaint was taken on file on 26.09.2003 and numbered the plaint.

Aggrieved by the same, these petitioners filed I.A. No. 191 of 2005 under Sections 149 and 151 CPC requesting the Court to reject the plaint on the point of limitation. It is further stated in the affidavit that even though 284 days delay occurred in representation of the plaint and even a petition was filed to condone the delay by the plaintiff, the Court did not pass any orders in the condone delay application on representation of the plaint, but curiously, took the plaint on file. Hence, this petition is filed to struck off the plaint from the file.

In the counter filed by the respondent, he has stated that in view of paucity of stamp papers and his illness, he could not pay the deficit Court fee in time and that this petition is liable to be dismissed, since it has been filed belatedly by the petitioners, while the suit is coming up for trial.

The learned Sub-judge, Paramakudi has dismissed the application by stating that since the issues have been framed and the suit is ripe for trial, the present petition is not maintainable. He has also followed a decision of this Court reported in (2007) 5 MLJ 412 K. Kalisamy and Anr. v. Ms. R. Gowri.

The learned Counsel for the petitioners Ms. K.R. Shivashankari representing Mr. S. Srinivasa Raghavan would vehemently contend that inasmuch as the respondent has not been granted time by the Court for payment of deficit Court fee and on account of failure on the part of the Court to condone the delay of 284 days, while the plaint was represented on 08.09.2003 and also by means of payment of Court fee beyond the date on which the suit got time barred, the suit is not at all in time and that it has to be rejected in view of the settled principles by this Court.

Conversely, the learned Counsel for the respondent would submit that having remained for quite a long time, allowing the suit to go for trial, the present petition has been filed to elongate the proceedings. Hence, on that ground alone, this petition is liable to be dismissed.

The learned Counsel for the petitioners placed much reliance upon a decision of the Division Bench of this Court reported in K. Natarajan Vs. P.K. Rajasekaran, , wherein the learned Judges after dealing with the subject, have formulated as many as 10 guidelines containing the procedures to be observed by the Subordinate Courts before taking the plaints on file, where the point of limitation is involved. They are as follows:

We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:

(1) Section 149 of CPC is a proviso to Section 4 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955.

(2) The word ''document'' employed in Section 149 of CPC would include plaint also.

(3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third day (excluding the date of presentation so also the intervening holidays).

(4) If the suit is presented on the last date of limitation affixing less Court-fee, than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court-fee.

(5) In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court-fee, shall order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite Court-fee and the Court is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike.

(6) The discretion referred to in Section 149 of CPC is a judicial discretion and the same has to be exercised in accordance with the well established principles of law. (7) But however, in cases where the time granted to pay the deficit Court-fee falls within the period of limitation, the defendant need not be heard.

(7A) In case where the plaint is presented well within the period of limitation with deficit Court-fee and the Court returns the plaint to rectify the defect giving sometime (2 or 3 weeks), which also falls within the period of limitation, but the plaint is re-presented paying deficit Court-fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial Court-fee (not almost entirety) at the first instance, before condoning the delay in paying the deficit Court-fee.

(8) In cases where part of the time granted to pay the deficit Court-fee falls outside the period of limitation and the deficit Court-fee is paid within the time of limitation i.e.,the plaint is represented with requisite Court-fee) the Court need not wait for the objections of the defendant and the plaint can be straight away numbered.

(9) The Court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court-fee Act or where he could not pay the required Court-fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial Court-fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in.

But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying Court-fee, awaiting the result of some other litigation, expecting compromise, etc)

(10) If the Court had exercised its discretion without issuing notice, then it is open to the defendant to file application u/s 151 of CPC for proper relief. It will be open to the defendant to file a revision under Article 227 of Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law ( as laid down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law.

Adverting to the facts of the case, the plaint was presented on 16.08.2002 on the verge of the time limit as per the stipulations in the Sale Agreement. It was returned on 19.08.2002. It is pertinent to point out that on representation also, namely, on 09.09.2002, the respondent has miserably failed to pay the deficit Court-fee allowing the suit to get time barred.

The learned Counsel for the petitioners also garnered support from another decision of this Court reported in 2005 (5) CTC 401 S.V. Arjunaraja v. P. Vasantha in which the learned Judge after following the decisions of the Supreme Court as well as the decision of this Court in K. Natarajan''s case (cited supra) held that if the Court extends time without recording any reason and without the plaintiff seeking time to pay the deficit Court fee, the extension itself is illegal and even if the Court-fee is paid later on, it will not cure the illegality.

I am in respectful agreement with the above-said observation of the learned Judge. In that order, the learned Judge has also dealt with Rule 11 of Order 7 of the Code. Paragraph 12 of the said order goes thus:

Rule 11 of Order 7 of the Code, catalogue the grounds, on which a plaint could be rejected and one of the grounds. i.e.(c) reads:

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 the stamp-paper within a time to be fixed by the Court, fails to do so;

By introducing a proviso by Act 104 of 1976, a duty is cast upon the Court to record reasons, while granting the time and the proviso reads:

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 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, with the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

Thus, it is implied, when the plaintiff was unable to pay the requisite Court Fees, he should invoke Section 149 of C.P.C. And upon invoking that Section, the Court may extend the time, for the reasons to be recorded, not otherwise. It is stated in the proviso that the Court shall not extend the time, without assigning and recording the reasons, thereby showing, if time has been granted, without any application or without recording the reasons, it is not valid, under law, since it would offend the infringe, not only Section 149 of the Code, but also the above said proviso. In this view, if the Court had extended time, without recording reasons, without the plaintiff seeking time to pay Court Fees, assigning reason, then, that extension, itself, should be held illegal and if is is so, if any Court Fees is paid later on, that will not have the effect as if, such Court Fees had been paid in the first instance, as saved in Section 149 of the Code.

The Court below has also referred to a judgment reported K. Kalisamy''s case (cited supra) to base its conclusion. In the said decision, it is observed that the power to permit the party to pay the deficit Court fee is not in any way affected by any bar of limitation and the object of the code is not to promote failure of justice. Section 148, therefore to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend time beyond 30 days and that the fact that the stamp papers were not available at the time of presentation of the plaint was not disputed by the other side.

However, in the case on hand, the facts are distinguishable. It has been made obvious that the Court below has not passed any order enlarging the time limit for payment of Court-fee and the Court below has also failed to pass any orders on the petition to condone the delay of 284 days in representation of the plaint. Rejection of plaint is an end-product of statutory violation.

Order 7 Rule 11 (c) CPC and the proviso attracted if the deficit Court fee was paid after the period of limitation. It goes thus:

11.(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.

While the guidelines formulated in K. Natarajan''s case (Cited supra) are expected to be strictly adhered to by the Court below, deviating from the procedure would amount to irregularity and illegality, which cannot be cured at all. In such view of this matter, taking plaint on file and numbering it by the Court below is not legal, since it has been woefully barred by time. Hence, the order passed by the trial Court is liable to be set aside and accordingly, it is set aside. I.A. No. 191 of 2005 is allowed.

In fine, the civil revision petition is allowed. Consequently, connected M.P. is closed. No costs.