Allahabad High Court
Pradeep Kumar And Another vs Sri Vishnu Kumar And 9 Others on 23 January, 2018
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR Judgment reserved on 04.01.2018
Judgment delivered on 23.01.2018
Case :- MATTERS UNDER ARTICLE 227 No. 2905 of 2013
Petitioner :- Pradeep Kumar And Another
Respondent :- Sri Vishnu Kumar And 9 Others
Counsel for Petitioner :- Arun K. Singh-I
Counsel for Respondent :- Kshitij Shailendra, C.S.C.
Hon'ble Manoj Misra, J.
This is plaintiffs' petition against an order dated 20.11.2013 by which plaintiffs' application 441 Ga, seeking disposal of application 389 Ka to amend the plaint of Original Suit (in short O.S.) No.319 of 1982 for deleting property no.2 from schedule A of the plaint, has been rejected on the ground that, earlier, by order dated 05.07.2011, while deciding issue no.2, the plaintiff was required to make good the deficiency in court-fee therefore, any further action in the suit, unless the deficient court fee is deposited, would not be permissible in view of sub-sections (2) and (3) of section 6 of the Court Fees Act, 1870, as applicable in the State of Uttar Pradesh (in short Act, 1870). By the impugned order the trial court also fixed an outer time limit for making good the deficiency in court fee or else face rejection of the plaint under Order 7 Rule 11(c) of the Code of Civil Procedure (in short the Code).
Briefly stated the facts giving rise to this petition are that in O.S. No.319 of 1982, which was instituted by the petitioners, issue no.2 was framed as to whether the court fees paid by the plaintiffs was insufficient. The trial court vide order dated 05.07.2011 held that the court fee would be payable as per section 7(iv)(a) of the Act, 1870 and accordingly required the plaintiffs to pay deficient court fee within 7 days. The petitioners challenged the order dated 05.07.2011 before this court by filing FAFO No.2524 of 2011, under Section 6-A of the Act, 1870.
It is the case of the petitioners that during pendency of FAFO No.2524 of 2011 some compromise took place in respect of property mentioned at serial no.2 in Schedule A of the plaint therefore, on 15.10.2012, they filed application 389-Ka to delete property entered at serial no.2 from the said Schedule. And since they decided to pay deficient court fee on the remaining property, FAFO No.2524 of 2011 was withdrawn. Thereafter, upon withdrawal of FAFO No.2524 of 2011, they moved an application (391 Ga) before the court below to consider the amendment application 389-Ka.
It appears, on 12.11.2013, instead of passing an order on the amendment application, the court directed the petitioners to make good the deficiency in court fees as directed by order dated 05.07.2011. As a result, the petitioners filed an application 441 Ga with prayer that before the plaintiffs are required to deposit the balance court fees, the amendment application 389-Ka be considered and till its disposal the operation of the order dated 12.11.2013 be suspended. It is this application which has been rejected by the impugned order by placing reliance on Section 6 (2) & (3) of the Act, 1870. Not only that it has been provided that the plaintiffs must first make good the deficiency in court fee and only thereafter amendment application 389-Ka would be considered.
The case of the petitioners is that though the trial court had determined issue no.2 against the petitioners and had required them to make good the deficiency in court fee but since, by amendment application 389-Ka, dated 15.10.2012, the petitioners had sought deletion of property entered at serial no. 2 from the Schedule of the plaint, which would reduce valuation of the suit as well as court fee payable therein, there was no legal justification not to consider the amendment application first and redetermine the court fee payable on the amended plaint.
Sri Arun Kumar Singh-I, who appeared for the petitioners, submitted that the plaintiffs have unfettered right under Order 23 Rule 1 of the Code to abandon any part of their claim and can also seek amendment in the plaint to reduce suit's valuation, therefore consideration of such application cannot be withheld on account of the provisions of sub-sections (2) and (3) of Section 6 of the Act, 1870. In support of his submission that amendment can be made to alter and reduce valuation of the suit or appeal, reliance has been placed on the following decisions: (a) Sathappa Chettiar v. Ramanathan Chettiar : AIR 1958 SC 245 (para 16); Saroje Mohan Chatterjee and others v. Jiban Mull Babu and others : AIR 1954 Calcutta 26 (para 4); and (c) Sah Ramchand v. Panna Lal and another : AIR 1929 All. 308 (at page 309 column 2).
Per contra, Sri Kshitij Shailendra, who had appeared for the contesting respondents 1 to 10, submitted that presentation of an insufficiently stamped plaint does not amount to valid institution of a suit and therefore no further action can be taken on the said plaint in view of sub-sections (2) and (3) of Section 6 of the Act, as applicable in State of Uttar Pradesh. Hence, even amendment of the plaint cannot be allowed. In support of his case, the learned counsel for the respondents placed reliance on following authorities:- (a) Hamid Hussain Khan v. Masood Hussain Khan and others : AIR (39) 1952 All. 279 and (b) Mt. Asghari Begum v. Fasihuddin : AIR 1934 All. 989.
I have considered the rival submissions and have perused the record as well as the authorities cited by the learned counsel for the parties.
The issue that requires adjudication in this case is whether the provisions of sub-sections (2) and (3) of Section 6 of the Act, 1870, as applicable in the State of U.P., prohibit exercise of power by a Court to entertain and allow an application to amend the plaint for the purposes of abandoning part of a claim and thereby reducing valuation of the suit, after determination that the plaint is insufficiently stamped.
Before addressing the above issue, it would be apposite to notice the relevant provisions of Act, 1870, as applicable in the State of U.P., and their inter play with the provisions of the Code.
At this stage, it would be appropriate to notice that the present petition arises out of a suit instituted in the court of Civil Judge therefore the provisions relating to Chapter II of the Act, 1870, which are specific in its application to fees in the High Courts and in the Court of Small Causes at the Presidency- towns, are not relevant.
For the purposes of this case the relevant provisions of the Act, 1870, as applicable in the State of U.P., are Sections 6, 9, 10, 12 and 28. The same are extracted herein below:-
"Section 6. Fees on documents filed, etc., in Mufassil Courts or in Public Offices -(1) Except in the courts hereinbefore mentioned, no document of any kinds specified as chargeable in the first or second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document:
Provided that where such document relates to any suit, appeal or other proceeding under any law relating to land tenures or land revenue the fee payable shall be three-quarters of the fee indicated in either of the said Schedules except where the amount or value of the subject-matter of the suit, appeal or proceeding to which it relates exceeds Rs. 500:
Provided further that the fee payable in respect of any such document as is mentioned in the foregoing proviso shall not be less than one and one- forth of that indicated by either of the said Schedules before the first day of May, 1936.
Explanation - Where the amount of fee prescribed in the Schedule contain any fraction of a rupee below twenty-five naye paisa or above twenty- five naye paise but below fifty naye paise or above fifty naye paise but below seventy-five naye paise or above seventy-five naye paise but below one rupee, the proper fee shall be an amount rounded off to the next higher quarter of a rupee as hereinafter appearing in the said Schedules.
(2) Notwithstanding the provisions of sub-section (1), a Court may receive plaint or memorandum of appeal in respect of which an insufficient fee has been paid, but no such plaint or memorandum of appeal shall be acted upon unless the plaintiff or the appellant, as the case may be, makes good the deficiency in court-fee within such time as may from time to time be fixed by the court.
(3) If a question of deficiency in court-fee in respect of any plaint or memorandum of appeal is raised by an officer mentioned in Section 24-A the Court shall, before proceeding further with the suit or appeal, record a finding whether the court-fee paid is sufficient or not. If the Court finds that the court-fee paid is insufficient, it shall call upon the plaintiff or the appellant, as the case may be, to make good the deficiency within such times as it may fix, and in case of default shall reject the plaint or memorandum of appeal:
Provided that the Court may, for sufficient reasons to be recorded, proceed with the suit or appeal if the plaintiff or the appellant, as the case may be, give security, to the satisfaction of the Court, for payment of the deficiency in court-fee within such further times as the Court may allow. In no case, however, shall judgment be delivered unless the deficiency in court-fee has been made good, and if the deficiency is not made good within such time as the Court may from time to time allow, the Court may dismiss the suit or appeal.
(4) Whenever a question of the proper amount of court-fee payable is raised otherwise than under sub-section (3), the Court shall decide such question before proceeding with any other issue.
(5) In case the deficiency in court-fee is made good within the time allowed by the Court, the date of the institution of the suit or appeal shall be deemed to be the date on which the suit was filed or the appeal presented.
(6) In all cases in which the report of the officer referred to in sub- section (3) is not accepted by the Court, a copy of the findings of the Court together with a copy of the plaint shall forthwith be sent to the Commissioner of Stamps.
Section 9. Power to ascertain nett profits or market-value.--In every suit the plaintiff shall file with the plaint a statement, in such form as may be prescribed for the purpose of particulars and valuation of the subject-matter of the suit, unless such particulars and valuation are contained in the plaint itself. If the Court sees reason to think that the annual net profits or the market-value of any such land, house or garden as is mentioned in Section 7, paragraphs 5 and 6, have or has been wrongly estimated, the Court may, for the purpose of computing the fee payable in any suit therein mentioned, issue a commission to any proper person directing him to make such local or other investigation as may be necessary, and to report thereon to the Court.
Section 10. Procedure where nett profits or market-value wrongly estimated.--(i) If in the result of any such investigation the Court finds that the nett profits or market-value have or has been wrongly estimated, the Court, if the estimation has been excessive, may in its discretion refund the excess paid as such fee: but, if the estimation has been insufficient, the Court shall require the plaintiff to pay so much additional fee as would have been payable had the said market-value or nett profits been rightly estimated.
(ii) In such case the suit shall be stayed until the additional fee is paid. If the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed.
Section 12. Decision of questions as to valuation.--(i) Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.
(ii) But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided. If such additional fee is not paid within the time fixed and the defaulter is the appellant, the appeal shall be dismissed, but if the defaulter is the respondent the Court shall inform the Collector who shall recover the deficiency as if it were an arrear of land revenue.
Section 28. Stamping documents inadvertently received.--No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped.
But if any such document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the presiding Judge or the head of the office, as the case may be, or, in the case of a High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; and, on such document being stamped accordingly, the same and every proceeding relating thereto shall be as valid as if it had been properly stamped in the first instance."
Before coming to the applicability of sub-sections (2) and (3) of Section 6 of the Act, 1870 in the context of the case at hand, it would be appropriate to examine few authorities on the inter play between the provisions of the Act, 1870 and the Code including the consequences of non-payment of deficient court fees.
In Mannan Lal v. Mst. Chhotaka Bibi, (1970) 1 SCC 769, the apex court considered the inter play between Section 4 of the Act, 1870, which is similar to sub-section (1) of Section 6 of the Act, 1870, as applicable in the State of U.P., and Section 149 of the Code. The apex court held that section 149 of the Code mitigates the rigour of Section 4 of the Act, 1870 and it is for the court in its discretion to allow a person who has filed a memorandum of appeal with deficient court fee to make good the deficiency and the making good of such deficiency cures the defect in the memorandum not from the time when it is made but from the time when it was first presented in court. The apex court observed that the provisions of the Act, 1870 and the Code have to be read together to form a harmonious whole and no effort should be made to give precedence to the provisions of one over those of the other unless the express words of a statute clearly override those of the other. The court went on to observe that Section 4 of the Act, 1870 is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonize the two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Act, 1870.
In Ram Prasad & Another v. Bhiman & another: 1 ALJ 577= 24 A.W.N. 198= 27 A. 151, a Division Bench of this court held that when a plaintiff in the initial stage of the litigation abandons a portion of his claim, he is not compellable to pay court fees upon that claim under the penalty of having the whole of his suit dismissed.
In Chunni Lal and others v. L. Gurdial Prasad and others: AIR 1957 Allahabad 63, a Division Bench of this court held that it is only under section 12 of the Act, 1870 that the Court has power to direct the Collector to recover the deficiency in the amount of court-fee from a respondent.
In Chief Inspector of Stamp v. Dr. Pragnarain: AIR (33) 1946 Allahabad 355, a full bench of this court while dealing with the provisions of sub-section (4) of Section 6-B and sub-section (3) of Section 6 of the Act, 1870 observed that the only penalty that a defaulting appellant suffers in a case where he has not made good the deficiency in spite of being called upon to do so is rejection of his memorandum of appeal. But there is no provision for the actual recovery from him of the amount of deficiency.
In Mt. Saiyadunnssa Khatun v. Gaibandha Loan Co. Ltd.: AIR 1937 Calcutta 562, the plaintiff had sought for two reliefs. The court fee paid was found deficient in respect of the two reliefs sought and the plaintiff was required to make good the deficiency. By the date fixed, the plaintiff sought amendment in the plaint seeking reduction in the claim. The amendment application was rejected without addressing the same on merits and thereafter the plaint was rejected under Order 7 Rule 11 of the Code. The Court allowed the appeal and held that the court undoubtedly had the power to allow abandonment of part of the claim on the part of the plaintiff under Order 23 Rule 1 of the Code or, if it be treated as an amendment of the pleadings, to order such amendment under Order 6 Rule 17 of the Code. Similar view has been taken by a Division Bench of the High Court of the then East Punjab in the case of Gainda Mal v. Madan Lal, AIR 1948 East Punjab 30 by following the above decision of the Calcutta High Court as also decisions of the Madras High Court in Neelachalam v. Narasinga Dass: AIR 1931 Madras 716 and in Duggempudi Ramakrishna Reddi v. Duggempudi Veerareddi and another: AIR 1946 Madras 126. In Neelachalam's case (supra), the Madras High Court took the view that it is open to a plaintiff to relinquish a portion of the claim to bring it within a certain court-fee. It was held that where the plaintiff is ordered to make good the deficiency in court-fee, instead of doing so, if he reduces his claim and furnishes requisite court fee on reduced valuation within the period prescribed by the court, the suit cannot be dismissed under section 10 (2) of the Act, 1870. Likewise, in Sah Ramchand v. Panna Lal, AIR 1929 Allahabad 308, a division Bench of this Court took the view that the plaintiff or appellant can always reduce his claim and effect a saving on court-fee if otherwise permissible.
From the authorities noticed herein above, the legal principles that can be culled out are: (a) that the provisions of the Act, 1870 and the Code have to be read together to form a harmonious whole and no effort should be made to give precedence to the provisions of one over those of the other unless the express words of a statute clearly override those of the other; (b) that before rejection of the plaint on the ground that deficiency in court-fee has not been made good, it is open to the plaintiff to abandon part of his claim, either by way of an application under Order 23 Rule 1 of the Code or by seeking amendment under Order 6 Rule 17 of the Code, to reduce valuation of the suit for saving on court-fee, unless such abandonment or amendment is otherwise not permissible; and (c) that the provisions of the Act, 1870, except to the extent permissible under Section 12 (ii) of the Act, 1870, do not provide for recovery of deficient court fee from a plaintiff or an appellant though the Court can reject the plaint or the memorandum of appeal if, despite direction to remove the deficiency, the deficiency is not made good within the time provided.
In above backdrop, what needs to be examined is whether sub-sections (2) and (3) of Section 6 of the Act, 1870 place any restriction on the power of the Court to permit the plaintiff to abandon part of his claim under Order 23 Rule 1 of the Code, or to allow an amendment under Order 6 Rule 17 of the Code to reduce valuation of the suit so as to save on court-fee.
A perusal of sub-section (2) of Section 6 of the Act, 1870, as applicable in the State of Uttar Pradesh, would reveal that the Court is entitled to receive a plaint or memorandum of appeal in respect of which insufficient fee has been paid but no such plaint or memorandum of appeal is to be acted upon unless the plaintiff or the appellant, as the case may be, makes good the deficiency in court fee within such time as may from time to time be fixed by the Court. The expression "no such plaint or memorandum of appeal shall be acted upon" requires interpretation.
What is important to note is that there is no specific provision in the Act, 1870, as applicable in the State of Uttar Pradesh, which may run contrary to the basic principle enshrined in Order 23 Rule 1 that a plaintiff being dominus litis (master of the suit) can at any stage abandon his suit or abandon a part of his claim. In fact, there is no specific provision prohibiting amendment in a plaint to reduce valuation of the suit by abandoning part of the claim. What needs to be ascertained now is whether the provisions of sub-sections (2) and (3) of Section 6 of the Act, 1870, as applicable in the State of U.P., impliedly take away the right of a plaintiff, which inheres in him under Order 23 Rule 1 of the Code, to abandon a part of his claim.
Before proceeding further it would be appropriate to ascertain whether the Code prohibits presentation of a plaint insufficiently stamped. If so, whether a plaint insufficiently stamped is a nullity under the Code on which no action, even as contemplated under Order 23 Rule 1 of the Code, could be taken.
Order 23 Rule 1 (1) of the Code provides that at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. Order 4 Rule 1 provides for institution of the suit. It provides that every suit shall be instituted by presenting a plaint, together with a true copy for service, to the court or such officers as it appoints in this behalf. Sub-rule (2) of Rule 1 of Order 4 as applicable in State of UP provides that the court fee chargeable for such service shall be paid when the plaint is filed. Sub-rule (3) of Rule 1 of Order 4, as applicable in the State of UP, which is pari materia sub-rule (2) of Rule 1 of Order 4 of the Code, provides that every plaint shall comply with the rules contained in Order 6 and Order 7 so far as they are applicable. Sub-rule (3) of Rule 1 of Order 4, which would be sub-rule (4) of Rule 1 of Order 4, as applicable in the State of U.P., provides that the plaint shall not be deemed to be duly instituted unless it complies with the requirement specified in sub-rule (1) and (2). Order 6 of the Code does not provide for payment of court fee and Order 7 of the Code also does not provide for payment of court fee though Rule 1 (i) of Order 7 provides for making a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court fees whereas Rule 11 (c) of Order 7 provides for consequences of non payment of court fees. Under the circumstances, when the provisions of the Code are read along with the provisions of sub-section (2) of Section 6 of the Act, 1870, as applicable in the State of Uttar Pradesh, even insufficiently stamped plaint can be presented in Court and it is not a null document. A Division Bench of the Calcutta High Court in Jitendra Nath Ray v. Jnanada Kanta Das Gupta : AIR 1936 Calcutta 277, while keeping in mind the provisions of Sections 12 (ii) and 28 of the Act, 1870, held that a document not properly stamped is not nullity. Further, sub-section (2) of Section 6 of the Act, 1870 does not prohibit presentation of insufficiently stamped plaint. It provides that the court may receive a plaint or memorandum of appeal in respect of which insufficient fee has been paid but no such plaint or memorandum of appeal shall be acted upon unless the plaintiff or the appellant, as the case may be, makes good the deficiency in court fee.
The phrase used in sub-section (2) of Section 6 of the Act, 1870 that no such plaint or memorandum of appeal shall be "acted upon" signifies that the plaint or the memorandum of appeal cannot be acted upon to serve the purpose for which it has been presented. It does not mean that the court cannot allow amendment or correction in the plaint or memorandum of appeal to abandon part of a claim because by such abandonment, the plaint is not acted upon. There is a difference between act upon the plaint or memorandum of appeal and to correct/amend the plaint or memorandum of appeal so as to abandon part of the claim. When the plaintiff moves an application to amend the plaint so as to abandon a part of his claim, the Court while dealing with such application does not act upon the plaint because it neither proceeds on the merit of the claim nor it considers an interim prayer to serve the claim made in the suit. Right to abandon a part of the claim inheres in a plaintiff and is recognized by Order 23 Rule 1 of the Code and since there is nothing in the Act, 1870 which takes away that right, this court is of the considered view that sub-section (2) of Section 6 of the Act, 1870 does not place any restriction on the power of a Court, available under Order 23 Rule 1 read with Order 6 Rule 17 of the Code, to allow the plaintiff to abandon a part of his claim, at the initial stage of the proceeding, even though a direction to make good the deficiency may not have been complied with. But such right ought to be exercised before a plaint is rejected either under the provisions of the Code or the Act, 1870. Accordingly, this Court holds that sub-section (2) of Section 6 of the Act, 1870 does not affect the right of a plaintiff to abandon part of his claim so as to reduce valuation of the suit to avoid payment of court-fee to the extent found deficient by the court or the taxing officer, as the case may be. But such right can only be exercised before the plaint is rejected either under Order 7 rule 11(c) of the Code or the provisions of Act, 1870.
In so far as sub-section (3) of section 6 is concerned, it restricts the right of the court to proceed further with the suit or appeal, if a question of deficiency in court-fee in respect of any plaint or memorandum of appeal has been raised by an officer mentioned in Section 24-A. Proceeding further in a suit or an appeal would mean proceeding further on the claim made in the suit or in the appeal or on the applications seeking interim relief to serve that claim. It does not take away the right of the plaintiff to abandon any part of his claim. When a plaintiff abandons part of his claim, he does not proceed further with his claim made in the suit. The process /act of abandonment of a part of the claim made in a suit does not amount to proceeding further in the suit.
Now coming to the decisions cited by the learned counsel for the contesting respondents, this court finds that decision in the case of Hamid Hussain Khan (supra), on which reliance has been placed by the learned counsel for the contesting respondents, is not applicable on the facts of the present case, inasmuch as, in that case the court was dealing with a situation where the plaintiff had pressed an application for appointment of a receiver pending suit proceeding without making good the deficiency in court-fees. In that context, the court had observed that without making payment of deficient court fee, no further action on the application can be taken because it was an interim matter connected with the suit. In the instant case, the plaintiff does not seek any interim relief in the suit but only seeks to abandon part of his claim made in the plaint therefore the said judgment is not applicable on the facts of this case.
In so far as the case of Mt. Asghari Begum's (supra) is concerned, that is a case where without making payment of court fees the plaintiff sought withdrawal of the suit with liberty to file a fresh suit. In that context, the court observed that till the deficiency in court fees is paid, there would be no proper suit and therefore where would be the occasion to grant permission for its withdrawal with liberty to file a fresh suit. The said decision does not deal with the power of the Court to allow the plaintiff to abandon part of his claim to reduce suit's valuation. Therefore it is of no help to the respondents.
In view of the discussion made herein above, this Court is of the firm view that the plaintiffs-petitioners had a right to abandon part of their claim, by way of amendment in the plaint, notwithstanding that they had not paid the entire court fee on the plaint, as determined, and such right was not affected by sub-sections (2) and (3) of Section 6 of the Court Fees Act, 1870, as applicable in the State of Uttar Pradesh. Accordingly, this petition is allowed. The order dated 20.11.2013 is set aside. The trial court shall first consider the amendment application 389- Ka, in accordance with law, before proceeding further in the suit. There is no order as to costs.
Order Date :- 23.01.2018 Sunil Kr Tiwari