Madras High Court
Guruvamma vs Sankarappan on 26 February, 2007
Author: S. Rajeswaran
Bench: S. Rajeswaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26/02/2007 CORAM THE HONOURABLE MR. JUSTICE S. RAJESWARAN C.R.P.(PD)No.69 of 2007 1. Guruvamma 2. Ramasamy ... Petitioners Vs- Sankarappan ... Respondent PRAYER This Civil Revision petition has been filed under Article 227 of the Constitution of India against the order dated 22-11-2006 passed in I.A No.711 of 2006 in O.S.No.231 of 2005 on the file of District Munsif, Kovilpatti. !For petitioners : Mr.A.Arumugam ^For Respondent : Mr.A.Sankarasubramanian :ORDER
This Civil Revision Petition has been filed against the order dated 22.11.2006 made in I.A.No.711/06 in O.S.No.231/2005 on the file of the District Munsif Court, Kovilpatti.
2.The defendants in the suit are the revision petitioners before this Court. The suit has been filed by the respondent/Plaintiff in O.S.No.231/2005 for recovery of a sum of Rs.67,950/- on the basis of a pronote dated 19.8.02 executed by the defendants. An application was filed by the revision petitioners in I.A.No.231/2005 stating that the suit is based on the pronote and the court fee has not been paid sufficiently in time. Moreover no leave has been obtained from the court as per the provision under Section 149 of C.P.C. Therefore they prayed for rejecting the plaint under Order 7 Rule 11 of C.P.C. on the grounds that the suit is barred by limitation.
3.The trial court by order dated 22.11.2006 dismissed the said application and aggrieved by the same the above C.R.P. has been filed under Article 227 of the Constitution of India.
4.Heard the learned counsel for the petitioners and the learned counsel for the respondent.I have also gone through the documents and the judgements referred to by them in support of their submissions.
5.The Learned counsel for the petitioners strenuously contented that the suit was initially filed by the plaintiffs on 17.8.2005 on the basis of a Pronote executed on 19.8.02 by paying court fee of Rs.1000/- only and by the time on 5.10.2005, when the deficit court fee namely a sum of Rs.4096.75/- (Rs.5096.75-Rs.1000/-= Rs.4096.75/-) was paid, the suit was already barred by Limitation, as no leave was obtained by the Plaintiff under Section 149 of the C.P.C. He placed his reliance on the decision of this court reported in 2005(5) CTC 401(S.V.Arjun Raja vs P.Vasantha).
6.Per contra the learned counsel for the respondents submitted that the suit was represented by paying the deficit court fee within the time granted by the trial court and therefore there is no illegality in the order passed by the trial court in dismissing the I.A.No.711/2006. He relied on the decision of the Supreme Court reported in 1992 (1) L.W. 637(Shri. Mohammed Mahibulla and another /vs/ Seth Chaman Lal(dead) by Lrs)
7. I have considered the rival submissions with regard to the facts and citations.
8. The facts which are not in dispute is that the suit was filed by the Plaintiff based on the pronote executed by the defendants on 19.8.02 for a sum of Rs.50000/- and the plaint was filed on 17.8.05 by paying only a court fee of Rs.1000/-, eventhough the total court fee payable by the Plaintiff was a sum of Rs.5096.75/-.
9.The Plaint was returned on 19.8.05 to comply with certain defects by granting one months time. One of the defects was the payment of deficit court fee on the plaint. The suit papers were represented on 19.9.05 by complying with other returns excepting the payment of deficit court fee. Therefore the suit was again returned on 21.9.05 indicating that the deficit court fee is to be paid on the plaint and one month time was granted for compliance. The suit papers were again represented on 5.10.2005 after paying the deficitcourt fee on the plaint. Thus admittedly on that date i.e on 5.10.2005, when the deficit court fee was paid, the suit was hit by the law of limitation as the pronote was executed on 19.8.02, and in such circumstances in the absence of getting leave from the court under Section 149 of C.P.C. to pay the deficit court fee, the suit will definitely become time barred. It is also not in dispute that in the case on hand no petition has been filed as provided under Section 149 of the C.P.C. by the plaintiff seeking the permission of the court to pay the deficit court fee. In such circumstances the only conclusion that would be arrived at is that in the absence of getting any leave from the court under Section 149 of C.P.C., the subsequent payment of deficit court fee shall not have the same force and effect as if such court fee had been paid along with the plaint in the first instance.
10.In 2005(5)CTC 401 (cited supra) this court after analysing various decisions in this regard held that when no application has been filed nor extension has been granted either under Section 149 or under Order 7 Rule 11(d) C.P.C.it should be held that the plaint should be rejected under Order 7 Rule 11(c) of C.P.C when the deficit court fee paid after a period of limitation is lapsed. The law laid down by this court in the above judgement will squarely apply to the facts of the present case as here also the deficit court fee was paid after the period of limitation and no application has been filed under Section 149 of C.P.C.seeking leave of the court nor any extension was granted under Order 7 Rule 11(d) of C.P.C.
11.The learned counsel for the respondent however sought to submit that on 21.9.05 when the plaint was returned for the second time to pay the deficit court fee,one month time was given for compliance and the deficit court fee was paid on 5.10.2005 i.e within the period of one month and therefore it cannot be said the suit is barred by limitation.
12.I am unable to agree with the submissions of the Learned counsel for the respondent as normally when papers are returned for certain compliance time granted is only for complying with the returns and such time granted for complying with the returns cannot be deemed to grant extension of time by the court for payment of deficit court fee. When the time is granted for payment of deficit court fee, the court should record reasons for permitting the petitioner to pay the deficit court fee and therefore the submission made by the Learned counsel for the respondent has to be rejected.
13.In 1992(1) L.W. 637(cited supra) relied on by the learned counsel for the respondent, a suit was filed by the Wakf Board after getting court fee exemption and as the same was dismissed the wakf Board preferred an appeal by paying the very same court fee payed by them in the suit. Objections were raised with regard to sufficiency of the court fee and the first Appellate court sustained the objection and directed the appeal to be dismissed. The order was confirmed by the High Court also. On appeal to Supreme Court, it was held that when the lower appellate court came to hold that the memo of appeal is not sufficiently stamp, and an opportunity should have been given by the court to the appellant to make good the balance court fees within the timeindicated and if there was failure to comply with the directions of the court the memo of appeal could bave been dismissed.
14.From the above, it is very clear that the fact of the judgement relied on by the learned counsel for the respondent are totally different and the decision would not help the respondent herein.
15.In the result the C.R.P. is allowed and O.S.No.231/05 has become time barred and consequently the trial court is directed to strike of the said suit from its filed. No costs.