Madras High Court
Rafeeque Ahmed vs C.Lickmichand Jain on 5 February, 2014
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :05.02.2014 CORAM THE HON'BLE MR JUSTICE K.KALYANASUNDARAM C.R.P.(PD).4013 of 2010 and M.P.No.1 of 2010 Rafeeque Ahmed ... Petitioner vs. 1.C.Lickmichand Jain 2.B.Suresh Kumar Jain 3.S.Rameela Bai ... Respondents Civil revision petition preferred under Article 227 of the Constitution of India against the order dated 02.07.2010 passed by the Additional District cum Sessions Court, Fast Track Court, Tirupattur, in I.A.No.55 of 2008 in O.S.No.14 of 2006. For Petitioner : Mr.V.Sundareswaran For Respondents : Mr.T.M.Hariharan for R1 ORDER
Inveighing the order dated 02.07.2010, passed by the Additional District cum Sessions Court, Fast Track Court, Tirupattur, in I.A.No.55 of 2008 in O.S.No.14 of 2006, this civil revision petition is filed.
2.The petitioner is the third defendant, in O.S.No.14 of 2006, on the file of the Additional District Court-Fact Track Court, Tirupattur. The first respondent herein, filed the suit for specific performance, on the basis of an agreement, dated 10.2.2002.
3.The brief facts of the case are as follows:
Indisputably, respondents 2 and 3 herein had entered into an agreement, with the first respondent, on 10.2.2002, agreeing to sell their land, to an extent of 11.59 acres, for a consideration of Rs.16,22,600/- and on the date of the agreement, an advance amount of Rs.1,22,600/- was paid to them. The first respondent filed the suit, on 30.3.2005, seeking specific performance of the agreement, to an extent of 4.17 acres of land. The suit was returned for rectifying some defects, including payment of deficit Court fee, on 1.4.2005. The first respondent, re-presented the suit papers, without paying the deficit Court fee, on 19.6.2006. The registry of the lower Court again returned the suit papers for compliance of defects, on 26.6.2006, and the first respondent again re-presented, the suit papers, without paying the deficit Court fee, on 25.7.2006. Therefore, the suit papers were once again returned, on 31.7.2006, and the same was re-presented, on 21.8.2006, without payment of deficit Court fee; On 24.8.2006, the registry of the lower Court returned the suit papers, to comply with the earlier returns and the papers were re-presented on the same day, but without complying with the defects. Eventually, on 07.9.2006, the first respondent/plaintiff made good the deficit Court fee and re-presented the papers, whereupon the suit was numbered.
4.The petitioner seems to have purchased the property, on 18.9.2006, from respondents 2 and 3 and on the petition filed by the first respondent, the petitioner was impleaded in the suit as third defendant, on 25.9.2007.
5.The trial of the suit had commenced, on 16.9.2008 and when the suit was posted for cross-examination of P.W.1, the petitioner filed an application in I.A.No.55 of 2008, under Order 7 Rule 11 of C.P.C. to strike off the plaint. The learned trial Judge dismissed the petition. Challenging the said order, the present revision is filed.
6.Heard Mr.V.Sundareswaran, learned counsel appearing on behalf of the petitioner and Mr.T.M.Hariharan, learned counsel appearing on behalf of the first respondent and perused records.
7.The learned counsel for the petitioner submitted that the first respondent filed the suit, on 30.3.2005, with a Court fee of Rs.500/-, when he is liable to pay a sum of Rs.43,785/- and the registry of the lower Court had returned the suit papers for paying the deficit Court fee, on 1.4.2005, but after expiry of about 1 = years, the first respondent paid the deficit Court fee, on 07.09.2006. Though there were enormous delay in remitting the Court fee, the fist respondent/plaintiff did not file any application, under Section 149 of C.P.C., for extension of time to pay the deficit Court fee. Therefore, the suit is barred by limitation and the subsequent remittance of the Court fee, will not cure the defect, unless the period is specifically condoned by the Court. The learned counsel further submitted that there is absolutely no explanation for remitting the deficit Court fee after 1 = years. Therefore, the plaint is liable to be struck off under Order 7 Rule 11 of C.P.C. The learned counsel replied upon the judgments the Honourable Apex Court as well as this Court reported in (i) 2012 (4) CTC 206 A.Nawab John & Others v. V.N.Subramaniam (ii)2005 (5) CTC 401 S.V.Arjunaraja vs. P.Vasantha, (iii) 2007 (3) CTC 144 V.N.Subramaniyam vs. A.Nawab John and 5 others, (iv) (2010) 6 MLJ 16-B.S.Santhilal (deceased) and Others v. J.Samidurai and Another for the proposition that there should be specific petition for extension of time, for payment of deficit Court fee, under Section 149 of C.P.C. and in the petition 'sufficient cause' should be assigned for enlargement of period.
8.Learned counsel for the first respondent submitted that when the plaint was filed, the first respondent had some confusion as to whether the Court fee has to be paid with regard to the value of the agreement or for the claim made in the suit. Only due to the reason, the first respondent could not pay the Court fee in time and later, the Court fee was made good and the suit was also numbered. Further, the trial has commenced and the Chief examination of the plaintiff was filed and now the suit is posted for cross-examination of P.W.1. So, at this stage, the application filed to strike off the plaint, cannot be entertained. The learned counsel relied upon the judgment of the Honourable Apex Court, reported, in (2009) 9 SCC 173 P.K.Palanisamy v. N.Arumugham and another.
9.It is noted that the first respondent had filed the suit for specific performance to enforce the agreement only in respect of the land to an extent of 4.17 acres, agreeing to pay Rs.5,83,800/-, proportionately, though the agreement entered into was to an extent of 11.59 acres, for the sale consideration of Rs.16,22,600/-. But in the original plaint itself, the first respondent had restricted his claim to an extent of 4.17 acres and the consideration of the property as Rs.5,83,800/-. Therefore, the contention of the plaintiff that he was under confusion in paying the Court fee, cannot be accepted. The agreement of sale was entered into on 10.2.2002 and the first respondent filed the suit only, on 30.3.2005, admittedly with the Court fee of Rs.500/-. Whereas, as per Section 4 of the Tamil Nadu Court Fees and Suits Valuation Act, the plaintiff was liable to pay the Court fee of Rs.43,785/-. The plaint was returned, on 1.4.2005, giving two weeks' time to the first respondent/plaintiff to comply with the defects, including the payment of deficit Court fee. As per the records, the plaint was re-presented only on 19.6.2006, i.e. after 13 = months, without paying the deficit Court fee and complying with the other returns. Again the plaint was returned, on 26.6.2006, 31.7.2006 and 24.8.2006, to comply with the previous return, dated 1.4.2005. The plaintiff chose to re-present the papers only, on 07.09.2006, paying the deficit Court fee of Rs.43,785/-.
10.It is well settled that the issue with regard to the payment of Court fee is between the plaintiff and the Court; however, the defendant is having every right to question the acceptance of the deficit Court fee, when it was made good after the expiry of limitation. Though the Court has got discretion under section 149 of C.P.C., and allow a person to pay the deficit Court fee and such payment shall have the force and effect of remittance of Court fee at the first instance itself, however, the discretion under Section 149 of C.P.C. has to be exercised judicially and on 'sufficient cause' to be adduced by the plaintiff. Section 149 of C.P.C. does not confer any absolute right on the plaintiff to pay the Court fee as and when he pleases. The exercise of the discretion by the Court is conditional upon the satisfaction of the Court that the plaintiff offered a legally acceptable explanation for not paying the court fee within the period of limitation. In the case on hand, the first respondent/plaintiff has not filed any application, under Section 149 of C.P.C., seeking extension of time to pay the deficit Court fee. Admittedly, the first respondent/plaintiff, had paid the Court fee only, on 07.9.2006.
11.The learned counsel for the first respondent has mainly relied on the judgment of the Honourable Apex Court reported, in (2009) 9 SCC 173-P.K.Palanisamy v. N.Arumugham and another. In that case, the plaintiff filed an application under Section 149 r/w.151 C.P.C for condoning the delay in re-presenting the suit papers and for payment of deficit Court fee. Those petitions were allowed by the trial Court and it was not challenged by the defendants. After filing of the written statement and commencement of the trial, the defendants filed a petition under Order 7 Rule 11 of C.P.C. to strike off the plaint. In the facts and circumstances of the case, the Honourbale Apex Court has held that at that stage, the application filed under Order 7 Rule 11 of C.P.C. is not maintainable. In my considered opinion, the judgment is not applicable to the facts of this case.
12.This Court in the judgment reported in (2000) 5 CTC 401-S.V.Arjunaraja vs. P.Vasantha has held that in the absence of specific application, invoking Section 149 of C.P.C and in the absence of any order passed by the Court granting time for payment of deficit Court fee, the plaintiff is not protected and the suit is liable to be rejected.
13.In 2007 (3) CTC 144 V.N.Subramaniyam v. A.Nawab John and 5 others, the plaintiff in that case filed a suit for recovery of money and on the basis of the claim, he ought to have paid the Court fee of Rs.96,603/-, but he paid the Court fee of Rs.2000/-. The plaint was returned for certain defects. The suit papers were re-presented, without complying with the defects, with the delay of 1328 days. So, once again the suit papers were returned, for rectifying the defects, including the payment of deficit Court fee and ultimately, the suit papers were re-presented with the delay of 585 days. The plaintiff did not file a petition, invoking the provision of Section 149 of C.P.C., for extension of time to pay the deficit Court fee, but filed applications to condone the delay in re-presentation. The trial Court condoned the delay and the suit was taken on file. The purchaser of the suit property, pendente lite, filed revision petitions before this Court, in C.R.P.Nos.657 and 658 of 2006, challenging the orders and to strike off the suit. This Court, having found that the Subordinate Judge has erred in condoning the delay, by exercising the discretion, without analysing the bona fides of the plaintiffs case and without giving notice to the defendant, struck off the suit. Paragraph Nos.12 and 16 of the said judgment read as under:
"12. Further, the relief under Section 149 CPC is a discretionary power of the Court to be exercised in a manner known to law. Suppose if a bona fide mistake is crept in, say for instance the plaintiff wrongly valued the suit under a particular provision or where something happened beyond his control, for example, robbery or non availability of stamps, then the court will be more in favour of granting time to the plaintiff to pay deficit court fee. But at the same time, if the plaintiff so acted (a) to harass the defendant, (b) did it expecting a compromise or awaiting result of some litigation or (c) because of contumacy or male fides on his part, courts will not exercise its jurisdiction in his favour. By and large, the position is, the Court must be satisfied about the bona fide mistake or some happenings beyond his control as has been laid down by a Division Bench of this Court in 2003 (2) MLJ 305 (K.Natarajan Vs. P.K.Rajasekaran). But in the present case though once it was alleged that there was non availability of sufficient stamp paper, but on the other occasions when the plaint was represented with deficit court fee, even such a plea has not been raised. But the court has without appreciating the bona fides of the plaintiffs allowed the Interlocutory Applications. In AIR 1995 SC 1945 (Buta Singh Vs. Union of India) the Hon'ble Supreme Court held that the aid of Section 149 could be taken only when the party was not able to pay the court fee in circumstances beyond control and under unavoidable circumstances and the court would be justified in appropriate cases to exercise the discretionary powers under Section 149 CPC after giving due notice to the affected party and it is not an automatic relief on mere asking.
16. Under these reasons since there is no invocation of the specific provision of Section 149 CPC and consequential prayer to condone the delay in payment of the deficit court fee while representing the Plaint, the Subordinate Judge has erred in allowing the I.A.Nos:75 and 76 of 2004 by exercising the discretion without analysing the bona fides of the plaintiffs case and without giving notice to the defendant. Accordingly, the CRP Nos:657 and 658 of 2006 are allowed. Consequently, CRP.No:797 of 2006 is also allowed which is a revision filed against the dismissal of the application filed for rejection of the plaint.
14.The above order was challenged by the plaintiff, before the Honourable Apex Court. In the judgment reported in 2012(4) CTC 2006-A.Nawab John & Others v. V.N.Subramaniam, the Honourable Apex Court, while confirming the order passed in the above revision, has held as follows:
"37. It is well settled that the judicial discretion is required to be exercised in accordance with the settled principles of law. It must not be exercised in a manner to confer an unfair advantage on one of the parties to the litigation. In a case where the plaint is filed within the period of limitation prescribed by law but with deficit court fee and the plaintiff seeks to make good the deficit of the court fee beyond the period of limitation, the Court, though has discretion under Section 149 CPC, must scrutinise the explanation offered for the delayed payment of the deficit court fee carefully because exercise of such discretion would certainly have some bearing on the rights and obligations of the defendants or persons claiming through the defendants. (The case on hand is a classic example of such a situation.) It necessarily follows from the above that Section 149 CPC does not confer an absolute right in favour of a plaintiff to pay the court fee as and when it pleases the plaintiff. It only enables a plaintiff to seek the indulgence of the Court to permit the payment of court fee at a point of time later than the presentation of the plaint. The exercise of the discretion by the Court is conditional upon the satisfaction of the Court that the plaintiff offered a legally acceptable explanation for not paying the court fee within the period of limitation.
15.In the light of the judgment of the Honourbale Apex Court and this Court, I am of the considered view that the first respondent/plaintiff ought to have explained the delay in paying the deficit Court fee and for re-presenting the suit papers. However, there is nothing on record to show that the first respondent/plaintiff filed any application either to condone the delay in re-presentation or for payment of deficit Court fee. When the plaintiff has not offered any acceptable explanation and has not shown 'sufficient cause' for the inordinate delay, the Court below ought not have numbered the suit and therefore, the plaint is liable to be struck off under Order 7 Rule 11 of C.P.C.
16.In the result, the impugned order is set aside and the civil revision petition is allowed. The numbering of the suit as O.S.No.52 of 2006 by the Principal District Judge, Vellore, and re-numbering the same as O.S.No.14 of 2006, on its transfer, by the Additional District Judge (Fast Track Court), Tirupattur, is set aside and consequently, the suit is struck off from the file. No costs. Consequently, connected miscellaneous petition is closed.
msk 05.02.2014
Index:Yes/No
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To
The Additional District cum
Sessions Court, Fast Track Court,
Tirupattur
K.KALYANASUNDARAM,J.
Msk
C.R.P.PD.No.4013 of 2010
05.02.2014