Madras High Court
Natarajan vs Jacob Manohar on 17 September, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17.09.2014 CORAM THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(MD)No.330 of 2008 Natarajan .. Petitioner Vs. Jacob Manohar .. Respondent Civil Revision Petition filed under Article 227 of the Constitution of India, praying to set aside the order passed in I.A.No.96 of 2006 in O.S.No.86 of 2006 on the file of the I Additional Subordinate Judge, Tirunelveli dated 19.07.2006. !For Petitioner : Mr.S.Kadarkarai ^For Respondent : Mr.T.S.R.Venkatramana :ORDER
This civil revision petition has been filed to set aside the order passed in I.A.No.96 of 2006 in O.S.No.86 of 2006 on the file of the I Additional Subordinate Judge, Tirunelveli dated 19.07.2006.
2. The revision petitioner is the plaintiff, whereas the respondent is the defendant in the suit in O.S.No.86 of 2006 on the file of I Additional Subordinate Judge, Tirunelveli.
3. The respondent has filed I.A.No.96 of 2006 under Order 7 Rule 11(c) C.P.C. to reject the plaint. According to the respondent, he did not borrow Rs.1,50,000/- from the petitioner on the basis of the promissory note executed on 10.06.2002. He borrowed only Rs.8,500/- and Rs.15,000/- and already he discharged the same on 14.03.2004. The suit promissory note is a fabricated document.
4. According to the respondent, the petitioner paid only Rs.5,500/- as Court fee at the time of filing the suit as against the Court fee payable by him. The petitioner did not comply with the directions of the Court to pay the deficit Court fee for more than 10 months and ultimately the Court fee was paid on 10.05.2006 without any permission from the Court under Section 149 C.P.C. and hence the suit is not valid in law. When the Court did not extend the time for payment of Court fee mere payment of Court fee beyond the period of limitation is not valid in law and will not extend the period of limitation. On these grounds, the respondent prayed for rejection of the plaint.
5. The petitioner filed counter affidavit stating that the entire Court fee could not be paid at the time of presentation due to non-availability of stamp papers, which is beyond the control of the petitioner. When the Court accepted the subsequent payment of deficit Court fee, it has to be presumed that Court has extended the period for payment of Court fee and it must be treated that the Court fee has been paid at the time of presentation of plaint itself. Hence, prayed for dismissal of the application filed under Order 7 Rule 11(c) C.P.C.
6. The learned I Additional Subordinate Judge, Tirunelveli considering the materials on record, pleadings and arguments of the counsel for the petitioner and the respondent, allowed the application by order dated 19.07.2006 and rejected the plaint. Aggrieved by the said order, the petitioner has filed the present Civil Revision Petition.
7. Heard Mr.S.Kadarkarai, learned counsel appearing for the revision petitioner and Mr.T.S.R.Venkatramana, learned counsel appearing for the respondent.
8. The learned counsel for the petitioner argued that once the insufficient Court fee paid and subsequently it was accepted, it is presumed that the Court has extended the time for payment of deficit Court fee and subsequent payment date backs to original date of presentation of plaint. The order extending time for payment of deficit Court fee is an administrative order. There is no necessity to file an application under Section 149 C.P.C. to get permission to pay the deficit Court fee. The learned I Additional Subordinate Judge, Tirunelveli failed to apply the principles properly and wrongly applied the ratio laid down in the judgment relied on by the learned counsel for the respondent.
9. To substantiate his claim, the learned counsel for the petitioner relied on the following judgements:
(i) State Bank of Travancore v. A.R.Thirumurthy and others [AIR 2003 NOC 115 (Madras) = 2002 AIHC 3376]. wherein in paragraph 14, it has been held as follows:
"14. The time granted by the court for the representation of the plaint, is only an administrative order and not a judicial order, and as such, if there is any delay in the representation of the plaint, an application to excuse the said delay could be filed under Section 151, CPC and it need not necessarily be the one under Section 148, CPC. In fact, Section 151, CPC is an omnibus provision available in the code to make suitable orders, which are necessary to meet the ends of justice and therefore, the application, which was filed under Section 151, CPC could have been allowed by the trial court. Even otherwise, the substance of the petition is more important than the form. Mere quoting of the provision wrongly, is not fatal to the petition itself. In that view of the matter also, the trial court could have allowed the said petition in excusing the delay in representation of the plaint. But, however, the court had taken a rigid view that the petitioner ought to have filed the petition either under Section 148, CPC or under Section 149, CPC and dismissed the petition. The said view of the trial court is an erroneous one and liable to be set aside. In fact, in this case, the plaint itself has not been admitted and the trial has not been commenced and it would not prejudice the case of the defendant to any extent, and that is also yet another reason, in favour of the petitioner to allow the petition. The defendant has not enough time to put forward his defence in the suit and his right to defend the case would not at all be prejudiced."
(ii) Bhuvaneswari v. R. Elumalai [2002(3) CTC 22], wherein in paragraph 14, it has been held as follows:
"14. The time granted by the court for the representation of the plaint, is only an administrative order and not a judicial order, and as such, if there is any delay in the representation of the plaint, an application to excuse the said delay could be filed under Section 151, CPC and it need not necessarily be the one under Section 148, CPC. In fact, Section 151, CPC is an omnibus provision available in the code to make suitable orders, which are necessary to meet the ends of justice and therefore, the application, which was filed under Section 151, CPC could have been allowed by the trial court. Even otherwise, the substance of the petition is more important than the form. Mere quoting of the provision wrongly, is not fatal to the petition itself. In that view of the matter also, the trial court could have allowed the said petition in excusing the delay in representation of the plaint. But, however, the court had taken a rigid view that the petitioner ought to have filed the petition either under Section 148, CPC or under Section 149, CPC and dismissed the petition. The said view of the trial court is an erroneous one and liable to be set aside. In fact, in this case, the plaint itself has not been admitted and the trial has not been commenced and it would not prejudice the case of the defendant to any extent, and that is also yet another reason, in favour of the petitioner to allow the petition. The defendant has not enough time to put forward his defence in the suit and his right to defend the case would not at all be prejudiced."
(iii) P.K.Palanisamy v. N.Arumugham [2009 (4) CTC 187], wherein it has been held as follows:-
"8. Appellant while presenting the Plaint inter alia contended that sufficient Court fee stamps were not available in the Sub-Treasury. The Presiding Officers of the local Civil Court in a given situation would be aware thereof. It may, therefore, consider the prayers made in that behalf by a suitor liberally. If Court fees are not available in a Sub-Treasury for one reason or the other, the Court having regard to he maxim 'lex non cogit ad impossibilia' would not reject such a prayer.
Payment of Court fees furthermore is a matter between the State and the suitor. Indisputably, in the event a plaint is rejected, the defendant would be benefited thereby, but if an objection is to be raised in that behalf or an application is to be entertained by the Court at the behest of a defendant for rejection of the Plaint in terms of Order 7, Rule 11(c) of the Code, several aspects of the matter are required to be considered. Once an Application under Section 149 is allowed, Order 7, Rule 11(c) of Code will have no application.
It is for that additional reason, the orders extending the time to deficit Court fee should have been challenged.
Filing of an Application for rejection of Plaint in a case of this nature as also having regard to the events which have taken place subsequent to registration of the Suit appears to us to be mala fide. If the learned Trial Judge did not entertain the said plea, the High Court should not have interfered therewith."
(iv) Manoharan v. Sivarajan [(2014) 4 SCC 163], wherein in paragraph Nos.7 and 9, it has been held as follows:-
" 7. Section 149 of the Civil Procedure Code prescribes a discretionary power which empowers the court to allow a party to make up the deficiency of court fee payable on plaint, appeals, applications, review of judgement, etc. This section also empowers the court to retrospectively validate insufficiency of stamp duties, etc. It is also a usual practice that the court provides an opportunity to the party to pay court fee within a stipulated time on failure of which the court dismisses the appeal. In the present case, the appellant filed an application for extension of time for remitting the balance court fee which was rejected by the learned Sub-Judge. It is the claim of the appellant that he was unable to pay the requisite amount of court fee due to financial difficulties. It is the usual practice of the court to use this discretion in favour of the litigating parties unless there are manifest grounds of mala fides. The court, while ensure bona fides of such discretionary power. Concealment of material fact while filing application for extension of date for payment of court fee can be a ground for dismissal. However, in the present case, no opportunity was given by the learned Sub-Judge for payment of court fee by the appellant which he was unable to pay due to financial constraints. Hence, the decision of the learned Sub-Judge is wrong and is liable to be set aside and accordingly set aside.
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9. In the case in hand, it is clear from the evidence on record that the appellant could not pay court fee due to financial difficulty because of which his suit got rejected. It is also pertinent to note that the appellant had moved the court claiming his substantive right to his property. The appellant faced with the situation like this, did not deserve the dismissal of the original suit by the court for non-payment of court fee. He rather deserved more compassionate attention from the Court of the Sub-Judge in the light of the directive principle laid down in Article 39-A of the Constitution of India which is equally applicable to district judiciary. It is the duty to the courts to see that justice is meted out to people irrespective of their socio-economic and cultural rights or gender identity."
(iv) A.Gurunathan v. J.Muthulakshmi [(2009) 3 MLJ 760], wherein in paragraph Nos.27 and 34, it has been held as follows:-
"27. As a matter of fact, Section 149 of C.P.C. specifies that where the whole or any part of the fee prescribed has not been paid, the Court can, in its discretion, at any stage, allow the person by whom such fee is payable to pay the whole or part of such Court fee and upon such payment, the document in respect of which such fee is payable shall have the same force and effect as if said fee had been paid in the first instance. In Hukma v. Manga AIR 203 (P&H) 287 it is held that 'Section 148 of C.P.C. in terms allows extension of time even though the original period has expired and Section 149 of C.P.C. is equally liberal. No wonder the payment of deficit Court fee relates back to the date of filing of the plaint. The Words "at any stage" in Section 149 of C.P.C specify that deficiency can be made good even after the period of limitation for filing of the suit or appeal has expired. The discretion can be exercised even in the case of a plaint without any Court fee in the considered opinion of this Court. Indeed, Section 149 of C.P.C. is the exception to the Rule, the suit should be filed with requisite Court fee. Moreover, the discretion is to be considered as defined in General Clauses Act and not under Limitation Act as per the decision in Custodian of Evacuee property v. Rameshwar Dayal AIR 1968 Delhi 183. Added further it is relevant to state that the question of limitation does not arise in respect of payment of deficit Court fee as per decision in 2003(6) ALD 682 at 686 (AP).
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34. In the up-shot of detailed discussions mentioned supra and on assessment of cumulative facts and circumstances of the present case, this Court comes to the conclusion that the order of the trial Court in dismissing the I.A.No.130 of 2008 dated 11.4.2008 is correct and consequently, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. However, the observation of the trial Court in para 16 of its order to the effect that 'the acceptance of payment of deficit Court Fee without an application that it is irregular, is set aside by this Court to prevent aberration of justice. Consequently, connected miscellaneous petition is also dismissed."
(v) P.Kumar v. Sanjay Agarwal [(2011) 3 MLJ 1037], wherein in paragraph Nos.29 and 31, it has been held as follows:-
"29. Be that as it may, the terms "at any stage" in Section 149 of Code of Civil Procedure adumbrates that the deficiencies can be made good even after the expiry of the limitation period in regard to the filing of the suit or Appeal and further, the discretion can be exercised even in the case of a plaint without any Court fee. In this connection, it is not out of place for this Court to point out that the discretion showered on a Court of law as per Section 149 of C.P.C. is over and above the application under Order 7, Rule 11 of C.P.C. To put it precisely, Order 7, Rule 11 of C.P.C. is not an enabling provision, but only a disabling one and the proper Section in and by which time may be granted for payment of Court fee is only Section 149. ...
31. This Court succinctly points out that when the revision petitioner/plaintiff as on 24.8.2007 has represented the Plaint by complying with certain defects and also paid the deficit Court fee, then such act cannot be found fault with by the respondents raising a plea there must be separate application under Section 149 of C.P.C. to extend the time for payment of deficit Court fee is not a correct and tenable one and since the order of the trial Court dated 30.4.2009 is not in conformity of the well settled legal position that an application to receive the deficit Court fee is not a mandatory one since the same being an optional one, the non filing of an application under Section 149 of Code of Civil Procedure is not a fatal one and hence, this court necessarily interferes with the said order and accordingly, sets aside the same by allowing the civil revision petition, by exercising its supervisory and parental powers under Article 227 of the Constitution of India which has to be sparingly used and since it is a fit case for using the said power, this Court is exercising the same in furtherance of substantial cause of justice."
10. On the other hand, the learned counsel for the respondent argued that the Civil Revision Petition is devoid of merits as the learned Judge properly considered all the materials and passed a well considered order. The learned Judge has exercised his power as per law. There is no infirmity in the impugned order of the learned Judge, warranting interference by this Court.
11. The learned counsel for the respondent further argued that the petitioner did not get permission of Court under Section 149 C.P.C. to pay the deficit Court fee and hence the payment of deficit Court fee after a period of limitation is invalid and ill-legal. The learned counsel further argued that the order under Section 149 C.P.C. is a judicial order and not an administrative order. If the plaintiff seeks permission to pay the deficit Court fee beyond the period of limitation, notice must be given to the defendant before extending the time for payment of deficit Court fee. The permission contemplated under Section 149 C.P.C. is mandatory and condonation of delay in representation will not amount to extension of time for payment of deficit Court fee. Unless the Court considers the reasons given by the plaintiff for not paying the entire Court fee and grants time for payment of deficit Court fee, payment of deficit Court fee will not be valid. The learned counsel for the respondent also argued that against the impugned order only appeal lies and Civil Revision Petition is not maintainable.
12. The learned counsel for the respondent relied on the following judgements:
(i) Satyanarayanacharyulu v. Ramalingam [AIR (39) 1952 MADRAS 86 (C.N.40) FULL BENCH], wherein in paragraph No.2, it has been held as follows:-
"2.Mr. Venkatarama Sastri argued that though the revision petition as filed purported to be against the order of 24th March rejecting the plaint, it must be deemed to have been really filed to revise the earlier order of the 14th March directing payment of additional court-fee. He relied on the ruling of the Full Bench in 'Murthiraju v. Subbaraju', I.L.R. (1944) Mad 626 which held that a revision petition would lie to the High Court when a subordinate court has held that a plaint has been inadequately stamped. In that case, however, there was no order formally rejecting the plaint before the revision petition was filed against the order directing the plff. to pay an additional court-fee. It was urged before the learned Judges in that case that the petitioner before them could have waited till a consequential order was passed by the lower court rejecting the plaint on non-payment of the additional court-fee demanded & then filed an appeal. But the learned Judges observed:
"The mere fact that an appeal would lie later from the consequential order passed by the Subordinate Judge if the stamp fee were not paid was no ground for refusing to entertain the petition."
The decision of the Full Bench is therefore no authority in support of the position that a revision petition would lie against an order demanding an additional court-fee even after a consequential order has been passed by the court rejecting the plaint, because the additional court-fee demanded had not been paid. Learned counsel was unable to cite any decided case in which it has been held that even after an order had been passed rejecting a plaint, an appealable order, the party aggrieved could prefer a revision petition against the earlier order demanding the additional court-fee. In our opinion, to allow a civil revision petition to be preferred in such circumstances would be against the well established principles of procedural law. In 'Ratnavelu Pillai v. Varadaraja Pillai', 1942-1 M.L.J. 569, Chandrashekhara Aiyar J, made an observation that if the order directing payment of additional court-fee was not complied with & it was followed by an order dismissing the suit, a revision petition would not be maintainable, but the remedy was only by way of an appeal against the decree. We agree with this observation which no doubt was made 'obiter' in that case."
(ii) Shamsher Singh v. Rajinder Prasad [AIR 1973 Supreme Court 2384], wherein in paragraph No.3, it has been held as follows:-
"3. ... This Court was there dealing with an application for revision filed before the High Court under Section 115 of the Code of Civil Procedure and pointed out that the jurisdiction in revision exercised by the High Court is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction, and the provisions of Sections 12 and 19 of the Madras Court Fees Act do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the Court fee payable. The ratio of that decision was that no revision on a question of jurisdiction was involved. This decision was correctly interpreted by the Kerala High Court in Vasu v. Chakki Mani, AIR 1962 Ker 84 where it was pointed out that no revision will lie against the decision on the question of adequacy of court- fee at the instance of the defendant ....... unless the question of court-fee involves also the question of jurisdiction of the court. In the present case the plaint was rejected under Order 7, Rule 11 of the C.P.C. Such an order amounts to a decree under Section 2(2) and there is a right of appeal open to the plaintiff."
(iii) Mohd. K.Rowther v. Hassan Rowther [AIR 1972 KERALA 56 (V 59 C11) FULL BENCH], wherein in paragraph No.1, it has been held as follows:-
" ... It is seen that the plaint was rejected on 10.02.1970 under Order
7. Rule 11. Civil P.C., for non-payment of additional court-fee as ordered. The revision petition was also filed on 10.02.1970 and it was admitted on 11.02.1970 after the rejection of the plaint. An order rejecting a plaint under Order 7, Rule 11 is a decree as defined under Section 2(2), Civil P.C. The proper remedy of the plaintiff is to file an appeal against the order rejecting the plaint and canvass the correctness of the order calling upon the party to pay additional court-fee in that appeal."
(iv) K.Natarajan v. P.K.Rajasekaran [2003-3-L.W. 803 (DB)], wherein in paragraph Nos.9, 13 and 14, it has been held as follows:-
"9. Section 149, which gives the discretion to the Court has to be exercised in a manner know to law. The discretion is one of judicial discretion. ... Thus, the legal position is that the discretion available to the Court under Section 149 is one of judicial discretion to be exercised in a manner known to law.
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13. Thus, the legal position can be summed up as that before exercising discretion under Section 149 C.P.C., and granting time to the plaintiff to pay necessary Court fee and which time goes beyond the period of limitation to file a suit, notice must be given to the defendant. We also point out that suppose a reason is given by the plaintiff for not paying the Court fee, it would not be possible for the Court to investigate into it and certainly the presence of the defendant will help the Court to take a decision.
14. Of course, where the time granted by the Court to pay the deficit court fee falls within the period of limitation to file the suit, no notice need be given to the defendant/opposite party. It is desirable that whenever a plaint is presented, the same is verified and returned at least on the third day (excluding the holidays), if necessary pointing out the defects."
(v) Arjunaraja, S.V. v. P.Vasantha [2005 (5) CTC 401], wherein in paragraph Nos.11 and 12, it has been held as follows:-
"11. ... Under this provision, the Court has every power, to allow the plaintiff to pay the Court Fees in whole or in part at any stage, and on payment of such Court Fees, it will have the same force and effect, as if, such fee had been paid in the first instance. In this view, if the Court had granted time, invoking Section 149 of the Code, then, the defendant cannot have any grievance, the position being, on payment of the deficit Court Fees, it will have the same force and effect, as if, such fee had been paid in the first instance itself, though on the date of payment of the Court Fees, the suit might have been barred by limitation, thereby, saving the limitation itself.
12. ... Thus, it is implied, when the plaintiff was unable to pay the requisite Court Fees, he should invoke 149 of the 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 and 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 reason, without the plaintiff seeking time to pay Court Fees, assigning reason, then, that extension, itself, should be held illegal and if it 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."
(vi) Gopalasamy, P.M. v. C.Senpagam [2007 (5) CTC 283], wherein in paragraph No.7, it has been held as follows:-
"7. The ratio decidendi in the above case was that in the absence of any order being passed by Section 149, C.P.C., granting time for payment or enlargement of time for payment of deficit Court fee, the plaint is not protected with limitation period and the Suit itself is liable to be rejected. Because when a specific provision viz. Section 149, C.P.C. is available, the plaintiff cannot invoke Section merely Section 151, C.P.C. The above dictum laid down by this Court in the above decision, after following the Division Bench judgment of this Court as well some of the decisions of the Apex Court, will squarely applicable to the facts of the present case. ...
the deficit Court fee paid later on after the expiry of the limitation period for the Suit will not have the effect as if the Court fee has been paid in the first instance as saved in Section 149, C.P.C. Consequently, the plaint rejection of plaint which has the effect of time barred one, is liable to be struck off."
(vii) State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat [AIR 2006 Supreme Court 212], wherein in paragraph No.114, it has been held as follows:-
"114. The trend of judicial opinion, in our view, is that stare decisis is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs, State policy and judicial conscience."
(viii) R.S.Pillai v. R.K.Ambalam [AIR 1976 MADRAS 289], wherein in paragraph Nos.5 and 7, it has been held as follows:-
"5. Number of decisions were cited by both sides for their respective contentions. In S.S.Khanna v. F.J. Dillon (AIR 1964 SC 497) the Supreme Court has specifically held that no revision will lie to the High Court. The Supreme Court interpreting Section 115 of the Civil P.C. has held that no revision will lie to the High Court in case where an appeal will lie to the High Court directly or indirectly.
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7. ... Thus it is clear both from the section and also the decisions cited above that only appeal will lie against the rejection of the plaint and it is not limited to such cases wherein the plaint was rejected for the reasons stated under Order 7, Rule 11, C.P.C."
(ix) G.Murugan v. Manickam [AIR 2003 MADRAS 129], wherein in paragraph No.25, it has been held as follows:-
"25.For the reasons stated above, the application in C.M.P.No.5791/2002 to condone the delay is dismissed and the unnumbered civil revision petition is also dismissed on both the grounds: (i) that as against the rejection of the plaint, revision will not lie and only an appeal will lie. ...."
(x) K.S.Geetha v. Stanleybuck [AIR 2003 MADRAS 146], wherein in paragraph No.9, it has been held as follows:-
"9. Order VII, Rule 11 of Code of Civil Procedure deals with rejection of plaint. Once the plaint is rejected, then obviously nothing is pending before the Court. That order is formal expression of an adjudication, which so far as regards the Court expressing it, conclusively determines the rights of the parties. In fact, S.2 of the Code of Civil Procedure which defines the term decree specifically states that the decree shall be deemed to include rejection of the plaint. Section 96 of the Code deals with appeal from original decrees. The claim of the respondents is that the order rejecting plaint being the decree by the trial Court, the only remedy, if plaintiff is aggrieved, is by way of filing an appeal and not by filing revision petition."
(xi) S.Manoharan v. T.Mayakkannan [(2008) 4 MLJ 405], wherein in paragraph No.6, it has been held as follows:-
"6. On going through the order under challenge it is evident that a reasoned order has been passed applying the provisions of law. It is an order on merits on contest. The plaintiff aggrieved can file an appeal against such order, as it amounts to a decree in terms of Section 2(2) of the Civil Procedure Code. The decision of the Supreme Court and the Full Bench of this Court applies to the facts of the present case. The revision petitioner has not made out a case for invoking the extraordinary power of this Court conferred by Article 227 of the Constitution of India."
(xii) Veerappan v. Ramamoorthy & another [2011-5-L.W. 538], wherein in paragraph No.6, it has been held as follows:-
"6. ... From a reading of the above, it is clear that the revision is not maintainable since the rejection of the plaint is a decree under the Code of Civil Procedure, and even if the plaint is rejected on some other grounds, the remedy is only an appeal under Section 96 of CPC."
(xiii) Govindarajan Padayachi v. Premananda Vijayakumar @ Prem Anand [2013 (6) CTC 467], wherein in paragraph No.9, it has been held as follows:-
"9. A careful reading of the said clause will make it clear that the definition of Decree shall include rejection of a Plaint. The rider provided thereto shows that definition of Decree shall not include any adjudication from which an Appeal lies as an Appeal from orders will make it clear that Order rejecting the Plaint which is deemed to be a decree shall not be included in the category of orders, which are appealable under Order 43, C.P.C."
13. The judgements in serial Nos.(viii) to (xiii) referred to by the respondent, have held that the order rejecting the plaint is an appealable order and Civil Revision Petition is not maintainable.
14. I have perused the materials on record and the judgments relied on by the learned counsel for the petitioner and the respondent and the arguments of the learned counsel for the petitioner and the respondent.
15. The learned counsel for the respondent raised a preliminary issue that Civil Revision Petition is not maintainable against the order rejecting the plaint as the same is an appealable order. In support of the same, the learned counsel for the respondent relied on the following judgements:
(i) R.S.Pillai v. R.K.Ambalam [AIR 1976 MADRAS 289].
(ii) G.Murugan v. Manickam [AIR 2003 MADRAS 129].
(iii) K.S.Geetha v. Stanleybuck [AIR 2003 MADRAS 146].
(iv) S.Manoharan v. T.Mayakkannan [(2008) 4 MLJ 405].
(v) Veerappan v. Ramamoorthy & another [2011-5-L.W. 538].
(vi) Govindarajan Padayachi v. Premananda Vijayakumar @ Prem Anand [2013 (6) CTC 467].
16. I am not deciding the issue whether Civil Revision Petition is maintainable or not as at the time of filing the Civil Revision Petition, the Registry raised objections regarding the maintainability of the Civil Revision Petition and the matter was posted before this Court. This Court directed the registry to number the Civil Revision Petition by referring to the following decisions:
(i) A.Sakthivel v. V.A.Shanmogavel [2003(1) CTC 83].
(ii) Bhuvaneswari v. R.Elumalai [2002(3) CTC 22 and
(iii) Gavaranga Sahu v. Botokrishna Patro and other [Vol.19 MLJ 340 (Full Bench)].
17. In view of the said order, I am not inclined to decide the question of maintainability of the Civil Revision Petition, after a lapse of more than 6 years.
18. On the merits, from the judgements relied on behalf of the learned counsel for the respondent, it is clear that unless the Court grants time under Section 149 C.P.C. to pay the Court fee, all payment of deficit Court fee is invalid. The order under Section 149 C.P.C. is a judicial order. The Court must record its reasons in writing for extending the time for payment of deficit Court fee. If reasons are not recorded or given, the said order is invalid one. A Division Bench of this Court in K.Natarajan v. P.K.Rajasekaran [2003-3-L.W. 803] held that if plaintiff is to be granted time to pay the deficit Court fee after the period of limitation, the same could be done only after notice to the defendant.
19. In the case of Manoharan v. Sivarajan [(2014) 4 SCC 163], relied on by the learned counsel for the petitioner, the Hon'ble Apex Court has held that the Court must be liberal in granting time for paying deficit Court fee as the plaintiff is unable to pay the entire Court fee due to financial constrains and Courts have discretionary powers to allow the party to make up deficiency of deficit Court fee within a stipulated time and retrospectively validate insufficiency of stamp duty. The said judgement is not applicable to the facts of the present case as in that case, the application was filed for extension of time for payment of deficit Court fee.
20. Similarly the judgment of the Hon'ble Apex Court in P.K.Palanisamy v. N.Arumugham [2009 (4) CTC 187] is also not applicable to the facts of the present case, as in that case also application was filed for extension of time for paying the deficit Court fee.
21. The decisions reported in 2002(3) CTC 22, Bhuvaneswari v. R. Elumalai and AIR 2003 NOC 115 (Madras) = 2002 AIHC 3376, State Bank of Travancore v. A.R.Thirumurthy and others are no longer good law in view of the judgment of the Division Bench of this Court reported in 2003-3-L.W. 803, K.Natarajan v. P.K.Rajasekaran.
22. In the decisions reported in (2009) 3 MLJ 760, A.Gurunathan v. J.Muthulakshmi and (2011) 3 MLJ 1037, P.Kumar v. Sanjay Agarwal, the learned Judge considered the decision of the Division Bench of this Court referred to above. But the learned Judge considered only the ratio under Section 149 C.P.C. and proviso to Section 4 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 and "the discretion to be exercised by a Court of Law is one of judicial one". But the learned Judge failed to see that the Division Bench held that an affidavit should be filed by the plaintiff giving reasons for not paying the requisite Court fee and if the plaint is represented paying deficit Court fee after the period of limitation, the Court is bound to hear the defendant not withstanding the fact that the plaintiff has paid the substantial Court fee at the first instance before condoning the delay in paying the deficit Court fee.
23. In view of the judgement reported in 2003-3-L.W. 803, K.Natarajan v. P.K.Rajasekaran, the decisions reported in (2009) 3 MLJ 760, A.Gurunathan v. J.Muthulakshmi and (2011) 3 MLJ 1037, P.Kumar v. Sanjay Agarwal do not support the case of the petitioner.
24. As the petitioner has not filed an application either under Section 149 Cr.P.C. or under any other provisions of C.P.C. and as the Court below did not specifically extended the time for payment of Court fee and as the petitioner has paid the deficit Court fee after the period of limitation, the impugned order of I Additional Subordinate Judge, Tirunelveli does not suffer from any irregularity.
25. In view of the judgements referred to above and the facts, I hold that the impugned order does not warrant any interference by this Court.
26. In the result, the Civil Revision Petition fails and the same is dismissed. No costs.
To The I Additional Subordinate Judge, Tirunelveli.