Madras High Court
A.Gurunathan @ Sivaji vs J.Muthulakshmi on 12 December, 2008
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 12.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.PD.No.2171 of 2008 and M.P.No.1 of 2008 A.Gurunathan @ Sivaji ... Petitioner Vs 1. J.Muthulakshmi 2. J.Vijayakumar 3. Kumudhavalli Manoharan 4. Geethanjali Sankar ... Respondents This Civil Revision Petition is filed under Article 227 of Constitution of India, against the fair and decretal order dated 11.4.2008 made in I.A.No.130 of 2008 in O.S.No.74 of 2007 on the file of the Additional District Judge and Fast Track Court No.1, Erode. For Petitioner : Mr.S.V.Jayaraman Senior counsel for M/s K.S.Jayaganesan For respondents : Mr.V.K.Muthusamy Senior Counsel for Mr.M.M.Sundaresh O R D E R
The revision petitioner/petitioner/94th defendant has filed this civil revision petition as against the orders dated 11.4.2008 in I.A.No.130 of 2008 in O.S.No.74 of 2007 passed by the Additional District Judge and Fast Track Court No.1, Erode in dismissing the application filed by the revision petitioner herein praying to reject the plaint under Order 7 Rule 11(c) and Section 151 of CPC.
2. The trial Court, while passing order in I.A.No.130 of 2008 has inter alia opined that 'without filing the application under Section 149 of CPC praying to condone the delay in regard to the payment of deficit Court Fee, the act of receiving the Court Fee by the Court is an irregular one but the same is not illegal' and resultantly dismissed the application.
3. The learned senior counsel for the revision petitioner contends that the order of the trial Court in dismissing I.A.No.130 of 2008 is contrary to law and that the trial Court has failed to note that it erred in law in extending the time for payment of Court Fee without any application being filed for such extension and moreover the extension of time for payment of Court Fee is not an automatic and that when the payment of Court Fee of paltry sum of Rs.100/- has been paid then admittedly, huge amount of deficit Court Fee has to be paid and this itself shows lack of bonafide on behalf of the plaintiffs and moreover, the time granted by the trial Court to pay deficit Court Fee has expired during vacation and hence the deficit Court Fee ought to have been paid on the reopening date and whereas it has been paid only long after that an that too without a petition for extension of time under Section 149 of CPC and that the trial Court has proceeded on the assumption that there has been delay of 37 days only but it has failed to take into account of the fact that the issue is not about the number of days but whether without an application for extension, the Court can extend the time in this regard and in any event on the date when the deficit Court Fee has been paid, the claim or right itself has become statutorily barred and therefore prays for allowing this civil revision petition in the interest of justice.
4. Contending contra, the learned senior counsel for the respondents submits that the suit O.S.No.74 of 2007 has been filed on 7.4.1994 under Section 6 of the Specific Relief Act for delivery of possession and damages, directing the defendants therein to deliver vacant possession of the suit properties after removing the superstructures put up by them at their costs within a time to be specified by this Court etc. and for the relief of damages of Rs.1,00,000/- towards value of the trees cut and removed and the damages done to the walls and building in the suit property and to the suit properties and for the relief of past damages to an extent of Rs.1,65,000/- and for future damages at the rate of Rs.30,000/-from the date of the suit till the actual delivery of the suit properties and that the Court-fee of Rs.100/- has been paid on the plaint as sufficient Court-fee namely stamp papers were not available with the stamp vendor on that date and that the application under Section 149 of CPC praying for time to pay the balance of Court-fee has been filed and the same has been allowed on 15.4.1994 whereby one month time has been granted to pay the deficit Court-fee, less Rs.100/- already paid and that one month time granted falls on 15.5.1994 during summer vacation and that the Court after recess has to reopen on 5.6.1994 and further than the plaint has been returned for various defects to be complied with, including the payment of deficit Court-fee and that the plaint has been re-presented on 28.4.1994 within the time granted and necessary entry in the Court Fee Register has been made as 8480 and necessary endorsement on 28.4.1994 has been made praying for time to pay the requisite deficit Court-fee assigning reason therefor but unfortunately the last sheet of the plaint containing all the necessary particulars and remarks made by the Court is found missing from the Court records and that after necessary return of the plaint and after complying with the defects, the plaint has been re-presented on 22.6.1994 with an endorsement rectifying the defects and the deficit Court-fee as required has also been paid along with the plaint and more over as seen from the plaint, the Court-fee stamps were paid, cancelled and accepted by the Court, on being satisfied with the sufficient reasons and hence, the act of acceptance in this regard by the lower Court does not suffer from any illegality as per Sections 148,149 and 151 r/w Order 7 Rule 11 of CPC and therefore, this Court sitting in revision may not interfere with the order of the trial Court passed in I.A.No.130 of 2008 and therefore prays for dismissal of the revision petition infurtherance has filed this present civil revision petition as of substantial cause of justice.
5. Further the learned senior counsel for the respondents brings it to the notice of this Court that earlier this Court has passed order in C.R.P.(PD) Nos.1174 to 1180 of 2007 dated 18.4.2007 to dispose of the suit within a period of five months from the date of receipt of copy of this order and that nearly 14 years have lapsed from the date of filing of the suit and the revision petition has been filed with a view to protract the proceedings.
6. The learned counsel for the revision petitioner cites the decision reported in Ramiah -v- R.Palaniappan (2007(5) MLJ 559 at 563) wherein it is observed as follows:
"In K.Natarajan.v.P.K.Rajasekaran(2003)2 MLJ 305, a Division Bench of this Court laid down the procedure to be followed with regard to payment of deficit Court Fees and the guidelines are extracted hereunder at p.315 of MLJ.
"1) Section 149 of Code of Civil Procedure 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 Code of Civil Procedure 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 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 Code of Civil Procedure 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 some time (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 re-presented 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 under Section 151 of Code of Civil Procedure for proper relief. It will be open to the defendant to file a revision under Article 227 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."
7.The learned senior counsel for the revision petitioner also relies on the decision reported in Kolisetti Basavayya -v- Mittapalli Venkatappayya (51 MLJ 90) wherein it has held as follows:
"The Court has discretion to extend to any limit the time within which the deficient Court-fee on a plaint may be paid; and if the fee is paid within the time fixed, the plaint will stand good as on the date of its presentation. When the plaintiff pays the deficient Court-fee beyond the time fixed, two courses are open to the Court. It may either reject the plaint or accept . Both courses are within its discretion with which a superior Court will not as a rule interfere. When the plaintiff pays the deficient Court-fee beyond the time fixed and has not asked the Court to extend the time for payment, but the Court nevertheless excuses the delay and receives the fee, the natural inference is that it intended to extend the time and in effect did so."
8.Added further, he draws the attention of this Court to the decision reported in V.N.Subramaniyam -v- A.Nawab John and 5 others(2007(3) CTC 144 at 145) wherein it has inter alia held that 'plaintiff who filed suit by paying Court-fee lesser than one to be paid sought to condone delay in representing plaint and did not file petition under Section 149 to extend time for paying deficit Court fee cannot get such relief under Section 151, CPC.'
9. The learned counsel for the respondents submits that the trial Court has power to extend time in regard to the payment of Court-fee under Section 149 of CPC and further it has also got the powers to accept the Court-fees beyond time fixed and in support of his contention, he relies on the decision (Kolisetti) Basavayya-Mittapalli Venkatappayya (A.I.R.1926 Madras 676) wherein it is held that ' Court can extend time or accept fees beyond the time fixed, but it cannot refuse to fix time under Order 7 Rule 11 CPC'.
10. He also relies on the decision reported in Raghunandan Sahay-Ram Sunder Prasad(1925 Patna 299) wherein it is inter alia observed that 'questions like the exercise of discretion under Section 148 or 149, Civil Procedure Code, should be left to the discretion of the trial Court and in the absence of a very strong case, the Appellate Court must not interfere with the trial Court's discretion.'
11. He further draws the attention of this Court to the decision reported in Gandham Nagabhushanam -vs- Mohd Asharafunnisa Bahebani (AIR 1960 Andra Pradesh 602) wherein it is inter alia held that 'where , however, the time has been granted under S.149 and representation of the plaint has been made after a delay of a few days and there has been no order granting time under S.148 but in fact there has been acceptance of that document as if full Court-fee has been paid as from the date of filing, the Court must be held to have acted under S.151 and cannot be said to have acted outside its jurisdiction or with material irregularity so as to call for interference. Condonation of delay is not altogether alien to the exercise of the powers conferred under S.151 and calling in aide of this inherent power is not unprecedented in such circumstances.
12. According to the learned counsel for the respondents, when the deficit court-fee of Rs.2,90,527/- has been paid on 22.6.1994 besides the payment of Rs.100/- Court fee made on 7.4.1994 then there is no question of raising an issue of limitation and in support of his contention, he relies on the decision reported in Venugopal Pillai -v- Thirugnanavalli Ammal(AIR 1940 Madras 934) wherein this Court has held that 'Court improperly and without sufficient cause granting time for payment of court-fee after presentation of plaint, the plaint takes effect as if presented with full court-fee on date of its first presentation and no question of limitation arises where plaint as originally filed is within time.'
13. He also cites the decision reported in Sreepathi Balaiah -v- Darsi Ramayya (AIR 1944 Madras 706) wherein this Court has inter alia held that 'when a Court has granted time within which a payment must be made and has declared that in default of payment within the time specified the proceedings will stand dismissed, there is no power under S.148 after the date on which those proceedings would stand dismissed, to extend the time in which the payment was to be made. But the Court has an inherent power to prevent a party from being demnified by the error of the Court's own officer and though there is no power under S.148 to reopen a closed matter and give an extension of time, the Court has power under S.151 to do that which is necessary for the ends of justice in order to set right the consequences of an unfortunate error committed by an officer of Court'.
14. He also presses into service the decision in V.O.Devassy -v- Periyar Credits (AIR 1994 Kerala 405) wherein it is inter alia held that 'when the Court allows the plaintiff or the appellant time to pay deficit Court-fee in exercise of its discretion, the other party cannot attack the order on the ground that it takes away his right to plead the bar of limitations, not can he claim to have derived a vested right by the non-payment of the Court-fee. Under the latter part of S.149, the defective plaint or appeal memorandum is validated with retrospective effect if the deficit Court-fee is subsequently made up. The power to permit the party to pay the deficit Court-fee is not in any way affected by any bar of limitation. The section is general in its terms and applies to all documents chargeable with Court-fee under the Court-fees Act including plaints,appeal memorandum etc. Moreover under O.7 R.11 the Court has therefore an obligation to require the party to make good the deficiency in the case of a plaint. The discretion conferred on the Court under S.149 is over and above this obligation under R.11 of O.7. In the case of an appeal the discretion under S.149 applies. The proper provision under which time may be granted or extended is S.149 and not O.7 R.11 which only states the circumstances in which the plaint shall be rejected. In other words, R.11 O.7 is not an enabling provision, but only a disabling one.'
15. Continuing further he relies on the decision reported in Mahanth Ram -v- Ganga Das(AIR 1961 Supreme Court 882) wherein the Honourable Supreme Court has held that Sections 148,149 and 151 clothed the High Court with ample power to do justice to a litigant if sufficient cause was made for extension.'
16. Another decision is cited on the side of the respondents in Durairangam Pillai -v- Govindarajulu Naidu(AIR 1938 Madras 560) to the effect that in a case, where a plaint insufficiently stamped is filed on the last day of the period of limitation and is returned by the Court allowing certain time for payment of the deficit Court-fee, the suit is not barred if the proper Court-fee is paid within the time allowed by the Court but beyond the period of limitation,the suit is not barred by limitation.'
17. Moreover, the learned counsel for the respondents cites the decision reported in Garapati Venkanna-v- Mullapudi Atchutaramanna (1938 MLJ 610 at 611) wherein this Court has held that 'but once time is granted to a party for payment of the deficit Court-fee it is no longer open to the plaintiff to demand as a matter of right that the time should be extended and where time has in fact been extended it may be presumed that the Court in fact exercised its discretion and it is necessary to provide by a rule made by the High Court that where the order regarding payment of deficit Court-fee had the effect of overriding limitation, the Court shall not make it without notice to the party to be adversely affected by it.'
18. He also places reliance on the decision in Mannan Lal-v- MST Chhotaka Bibi(1971 AIR 1374 at 1375) wherein the Honourable Supreme Court has inter alia held that 'the filing of a memorandum of appeal therefore bring an appeal into existence; if the memorandum is deficient in Court-fee, it may be rejected and if rejected, the appeal comes to an end. But if it is not rejected and time is given to the appellant 254 to make up the deficiency and this opportunity is availed of S.149 of the Code which expressly provides that the document is to have validity with retrospective effect as if the deficiency had been made good in the first instance comes into play. By reason of the deeming provision in S. 149 the memorandum of appeal is to have, full force and effect and the appeal has to be treated as one pending from the date when it was before the Stamp Reporter and the deficiency noted therein.'
19. He also draws the attention of this Court to the decision in Jugal Kishore-v- Dhanno Devi(dead) By Lrs.(AIR 1973 Supreme Court 2508 at 2509) wherein the Honourable Apex Court has among other things held that ' on the acceptance of the Court fee, by the Court, the document, namely, the plaint would by virtue of Section 149 CPC have the same force and effect as if such fee had been paid in the first instance viz., on the date it was presented to the Court ie., when the application to sue as pauper was first made. That date being within limitation it was not barred.'
20. In regard to the contention that the trial Court has ample power to extend time for affixing the proper court-fee, the learned counsel for the respondents submits that such power can be exercised by the trial Court in order to do justice to the litigant, where the failure is not due to any fault of the litigant, he relies on the decision reported in Indian Statistical Institute -v- M/s Associated Builders (1978 AIR 335).
21. He also relies on the decision in Kathyee Cotton Mills Ltd.,-v- Padmanabha Pillai(AIR 1958 Kerala 88) wherein it is inter alia held that there is no conflict or exclusiveness between Section 148 and 149 of CPC and that a party is not , as of right, is entitled to under Section 148 to get an of an enlargement of a period fixed or granted by the Court and that is a matter entirely within the discretion of the Court though no doubt some discretion should be exercised judicially and no capriciously or arbitrally.' According to the learned counsel for the respondents in Section 149 of CPC the expression"at any stage' is used and that the terms of 'time' is used in Section 148 of CPC. Further it is the contention of the learned counsel for the respondents that even a time fixed under Clause(c) of Rule 11 of Order 7 will be a period fixed under Section 148 of CPC and as such the Court will have power to extend, if it otherwise deems fit to do so.'
22. In regard to the contention that the discretion enjoins under Section 149 of CPC is to be exercised in favour of the party, the learned counsel for the respondents relies on the decision reported in Jagat Ram-v- Misar Kharaiti Ram(AIR 1938 Lahore 361) wherein it is held that 'the discretion conferred on the Court by S.149 is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive malafides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act.'
23. He also cites the decision reported in Amarsingh -v- Chaturbhuj (AIR 1957 Rajasthan 367) wherein it is inter alia held that ' When a party pays deficit court fees beyond the time fixed, and has not asked the Court to extend the time, but the Court nevertheless admits the appeal and receives the fee, the only reasonable interpretation is that the Court has, implicitly , though not explicitly extended the time within the meaning of S.149 even though the period of limitation has expired.'
24. Moreover he relies on the decision reported in Nalluri Singh -v- Bandlapati Kishore Babu(AIR 2006(NOC) 1183(A.P) wherein it is inter alia held that 'order of the trial Court in allowing the application seeking condonation of delay in representing the plaint should be deemed to have condoned delay in payment of deficit court fee as well.'
25. The learned counsel appearing for the respondents cites the decision reported in K.Natarajan -v- P.K.Rajasekaran (2003(2) M.L.J.305) wherein this Court has inter alia held that 'in effect ,S.149, C.P.C. is proviso to Sec.4 of Tamil Nadu Court Fees and Suits Valuation Act ,1955 and that the discretion to be exercised by the Court under Section 149 of CPC is one of judicial discretion.' He also presses into service, the decision reported in Beerav Alli Desireddi -v- Yeluri Rama Rao(AIR 1972 Andhra Pradesh 55 at 56) wherein it is held that 'appellate Court while dismissing appeal can grant time for payment of Court-fee as appeal is only continuation of original proceeding.' He further relies on the decision Ganapathy Hedge -v- Krishnakudva (2005)13 Supreme Court Cases 539 at 540) wherein the Honourable Supreme Court has held that' In the present case, the order passed by the trial Court accepting the deficit Court fee paid on 23.2.2000, thereafter registering the suit on 10.4.2000 and consequently, the order dated 3.11.2001 rejecting the defendant-respondents' application under Order 7 Rule 11 CPC were perfectly in accordance with law and within the discretion conferred on the trial Court with which the High Court ought not to have interfered in exercise of the jurisdiction vested in the High Court under Section 115 CPC. The order of the High Court , if allowed to stand, is likely to occasion failure to justice etc and the appeal is allowed.'
26. It is to be pointed out that if a litigant seeks enlargement of time on the basis that for some reasons, he can perform the act which he is required to fulfil within the time determined by the Court, it is for him to move an application under Section 148 of CPC and the convenience of the Court that the interest of justice will require extension of time whether perspectively or retroactively under Section 148 of CPC itself. Moreover, one is not obliged to file such an application in all cases. In this connection, in the decision reported in Mohd. Yosuf-v- Bharat Singh(AIR 1999 Raj.185), it is held that 'where the omission on the part of the party is trivial and the mistake committed by him is not a serious nature and does not adversely affect the rights of the parties, the Court may itself extend the time under Section 148 of CPC so that the technical defects may be removed and the hearing of the case may proceed in accordance with law. Earlier, this power was without any restriction but now, after the Code of Civil Procedure(Amendment) Act 1999, with effect from 1.7.2002, this power has been restricted for enlarging the period upto 30 days only. However, the upper time limit determined under Section 148 of CPC cannot take away the inherent powers of the Court to pass orders as may be necessary for the interest of justice or to prevent abuse process of Court. The rigid operative play of Section 148 of CPC will lead absurdity. Therefore, Section 151 of CPC has to be allowed. But the enlargement of time prayed for payment of Court fee may not be granted under Section 148 of CPC because Section 149 of CPC deals with the power of the Court to permit payment of Court fee at any stage as per decision of' in the matter of Goods of Late Ravinder Kumar AIR 2004 ALL 46.
27. As a matter of fact, Section 149 of CPC 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 2003 P &H) 287) it is held that 'Section 148 of CPC in terms allows extension of time even though the original period has expired and Section 149 of CPC 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 CPC 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 CPC is the exception to the Rue, 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 reported in 2003(6) ALD 682 at 686 (AP).
28. In the Court Fee Register of the Subordinate Court, Erode for the period from 18.1.1994 to 8.4.1994, on 7.4.1994, at Sl.No.8481, it is mentioned as 'O.S/94 PL.V.D.O.C.15 ACM 16, Rs.100/- paid on the plaint towards Court fee and Rs.1.50 paid towards Court Fees e.g. Vakalat enclosures. In the Court Fee Register relating to the period from 8.6.1994 to 30.8.1994, on 22.6.1994, in Sl.No.8481 of 12, the name of the Pleader is mentioned as "ACM" and the Court fee paid is shown as Rs.2,90,527/- and in the date of return is mentioned as 'on 29.6.1994 and in the signature of the party or Pleader column someone has initialled. In Court Fee Register for the period from 30.8.1994 to 16.12.1994 of the Subordinate Court, Erode, on 13.9.1994, it is mentioned as 8481/16 Dr.5.9.94 and in the name of the party( and Pleader) presenting the document is mentioned as"716/94 II in red ink and the letters "ACM 16" are found and in the last column initials of clerk or other person to whom the document is consigned with date, short initial is found.
29. The learned counsel for the revision petitioner submits that the cause of action is dated 16.10.1993 within six months suit is to be filed and the same has expired on 16.4.1994 and the date of reopening of the Court, after summer recess is on 6.6.1994 and that on 7.4.1994 only the Court fee of Rs.100/- has been paid and that the plaint has been returned on 15.4.1994 granting one months' time and that the plaint has been represented on 28.4.1994 after rectification of defects, but for payment of Court Fee the plaint has been returned granting time for payment of deficit Court Fee till 22.6.1994 and that when deficit court fee has been paid on 22.6.1994, the limitation period is over and therefore, the crucial issue is whether without filing an application praying permission of the Court to accept the Court fee, can the Court accept the payment of deficit Court fee and contends that the application is very much necessary under Section 149 of CPC, without which the Court cannot receive the deficit court fee and condone the delay thereto.
30. The learned counsel for the respondents submits that originally the Court fee of Rs.100/- has been paid on the plaint and an application has been filed before the lower Court under Section o149 of CPC praying time for payment of balance of Court fee and the same has been allowed on 15.4.1994 granting a month's time to pay the deficit Court fee less Rs.100/- already paid and that since the one month time expires on 15.5.1994 during the summer recess and that the Court is to re-open during the first week of June 1994 and further that the plaint has been returned for various defects to be complied with, including the payment of deficit court fee and that without the time granted the plaint has been re-presented on 28.4.1994 and necessary entry 8480 has been made in the Court Fee Register and after necessary return of the plaint and after attending the rectification of defects, the plaint has been re-presented on 22.6.1994 with an endorsement 'rectifying defects' including the payment of balance of Court fee having been paid along with the plaint and therefore, the trial Court has accepted the balance of deficit Court fee for excusing the delay, if any under its vested power and that the plaint has been re-presented on 13.7.1994, 2.8.1994, 23.8.1994, 5.9.1994 and finally 13.9.1994 before the numbering of the suit and therefore the civil revision petition has to be dismissed. As a matter of fact, the plaint has been registered as suit on 13.9.1994.
31.In regard to the exercise of judicial discretion by a Court of law, this Court aptly points out the decision reported in Faizullah Khan-v- Mauladad Khan(AIR 1929 Privy Council 147) wherein it is observed as follows:
"Even accordingly if the mistake insisted on had been made, this, in the opinion of the Board, was a plain case for rectifying that situation if it could be done, and the Courts are fortunately furnished with an easy method of doing so: S.149, Civil P.C. "Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, 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 such fee had been paid in the first instance"
It will be observed that that discretion extends to the whole or any part of any fee prescribed and can be exercised at any stage in the case, while finally upon the extra payment being made, then the document is to have the same effect as if it had been paid in the first instance.
This also answers the argument presented under the "Limitation Act. The dates are as follows:- The decree of the Subordinate Judge was dated 24th March 1924, the first appeal was on 27th May and the second on 2nd June, bringing before the appeal Court the respective claims of each suitor. The time for limitation of the appeal is 90 days, and it is thus seen that both appeals were within time. They were not a nullity. On the contrary, they were documents duly presented to and accepted by the Court, and as to the fee thereon, should the valuation be unsatisfactory or in the end insufficient, that is validated by the additional payment, the result of which payment is that the document, namely, the memorandum of appeal, stands good from its date. The appeals are accordingly not time-barred."
32.As far as the present case is concerned, the deficit Court Fee of Rs.2,90,527/- has been paid on 22.6.1994. However, no application has been filed before the trial Court to accept the payment of deficit Court Fee. But the trial Court has accepted the payment of deficit Court Fee mentioned supra. In the first page of the Court Fee stamp paper of Rs.3000/- value, stretched with the plaint, there is an endorsement in red ink by the Sheristadar of the Sub Court, Erode to the effect that DCF paid Rs.2,90,527/- and initialled putting the date as 22.06.1994 by him.
33.Unfortunately in the case on hand, in the plaint only one endorsement has been made on 17.3.2004 by P.D.J. to the effect that 'received by transfer from I A.S.J. Erode as per District Court proceedings A.No.19/2004 dated 9.2.2004 and numbered as O.S.No.63/2004 dated 17.3.2004 and posted to 29.3.2004' is found and other Endorsements/Returns made by the Court/learned Judge and the compliances made by the plaintiffs are not there. In the considered opinion of this Court, an application to receive the deficit Court Fee is not a mandatory one and the same is only optional and in the absence of an application the act of Court in accepting or receiving the deficit Court Fee cannot be found fault with and the exercise of judicial discretion by the trial Court in this regard in favour of the plaintiffs in order to do justice is a prudent and equitable one, since the said discretion in its breath is coextensive with necessity and the resultant position is the plaint stands good from the original date of filing and the same is not time barred. Moreover, the duty of Court is to see that its acts injures no party.
34.In the up-short 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 11.04.2008 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.
35.Before parting with the case, this Court points out that earlier C.R.P.Nos.1174 to 1180 of 2007 there has been a direction issued to the trial Court viz., Principal District Judge, Erode to dispose of the suit within a period of five months from the date of receipt of a copy of this order. It is not known whether any extension of time has been prayed for by the trial Court in regard to the disposal of the suit.
36.In this connection, this Court pertinently points out that in Roc.No.2065/85/F1 dated 17.06.1985 in P.Dis.101/ 85, the Hon'ble High Court has inter alia issued instructions/directions to the Subordinate Courts to dispose of any proceedings pending on their file within the prescribed or specified time limit as per directions of the Hon'ble High Court and if the proceedings are not disposed of within the time granted, then, they shall write to the High Court by means of request well in advance of the date specified in the High Court's order stating the reasons therefor and the further time is required to dispose of the same etc.
37.Admittedly, the Courts of law are Temples of Justice. The records of the Courts are to be preserved and maintained as per rules so as to instill confidence in the minds of litigant public, in our Justice Delivery System. No wonder, for the mistake of Court or Court staff a litigant should not suffer. Unfortunately, in the present case, O.S.No.74 of 2007 on the file of the Additional District Judge, Fast Track Court No.I, Erode (previously O.S.No.716/1994 on the file of Sub Court, Erode at the time of numbering) except the endorsement made by the P.D.J. dated 17.03.2004 in red ink to the effect that 'received by transfer from I A.S.J. Erode as per District Court proceedings A.No.19/2004 dated 9.2.2004 and numbered as O.S.No.63/2004 dated 17.3.2004 and posted to 29.3.2004', no other Endorsements/Returns are found/seen in the Plaint and this reminds of the Roman Poet Juvenal who said "quis custodiot ipsos custodes."
12.12.2008 Index: Yes Internet: Yes sg To The Additional District Judge, Fast Track Court No.1, Erode.
M.VENUGOPAL,J.
Sg Order in C.R.P.(PD).No.2171 of 2008 12.12.2008