Karnataka High Court
Bhoopalam R. Ramaswamy vs Vysya Bank Ltd. on 25 October, 1991
Equivalent citations: ILR1992KAR3574, 1991(4)KARLJ678
ORDER 7 RULE 11 & KARNATAKA COURT FEES & SUITS VALUATION ACT, 1958 (Karnataka Act No. 16 of 1958) - Section 5 - Power of Court to grant time to pay Court fee : discretion controlled by Order 7 Rule 11(c) & Proviso. Held : It is true that the Court has power to grant time to pay defecit Court fee in view of Section 5 of Karnataka Court Fees and Suits Valuation Act read with Section 148 and 149 of the Civil Procedure Code. But the discretion conferred on the Court to extend time to pay Court-fee is further controlled by Order 7 Rule 11 (c) read with the Proviso to the said Rule. On Facts : In the orders there is no finding that non-payment of defecit Court-fee was bonafide and the circumstances were beyond plaintiff's control, It is also not mentioned in the orders that reasons shown for failure to pay defecit court-fee, satisfactory and warrants for extension of time to pay the defecit Court-fee. -- SECTION 151 - Revisional Powers : Discretionary Orders -To see whether order In aid of rendering just result. In discretionary orders Court has to see whether order in question is in the aid of rendering a just result but not to see from the angle that such an order suffers from illegality or irregularity in the absence of any loss or prejudice to the other side. ORDER Hanumanthappa, J.
1. Since the question of law involved in both the petitions is common, both the petitions are clubbed and a common Order is passed.
For disposal of these Civil Revision Petitions, rank of the parties is referred to as in the trial Court.
Plaintiff/Bank filed two separate suits on 3.7.81 for recovery of amounts mentioned in the respective suits. For want of Court fee, stamp paper of only Rs. 500/- was affixed on each plaint. Office of the trial Court after checking the Court fee noted that Court fee paid on the plaints as deficit. Hence, Court granted time to the plaintiff/Bank to pay deficit Court fee by 31.7.81. On 31.7.81 when cases were called the plaintiff did not make good the deficit Court fee. Hence the Court ordered to pay the same by 5.8.81. On 5.8.81 again Court fee was not paid. Order sheets read deficit Court fee not paid. Hence, cases were adjourned to 28.9.81. Again on 28.9.81 the cases were called on which day deficit Court fee was paid. Subsequently, the defendants filed their written statements. In the written statements objections were taken to the effect that the suits are not maintainable for want of deficit Court fee on the date of presentation of the suits. On the basis of pleadings, Issues were framed. Among many issues framed separately in both the suits, Issue Nos. 12 and 13 respectively relate to maintainability of the suit. In O.S. 199 it is Issue No. 12 and in O.S. 200/81 it is Issue No. 13 relate to maintainability of suit. Plaintiff/Bank submitted that these two Issues be tried as preliminary issues as the same are purely questions of law. Hence, arguments were advanced by both sides on these two Issues. The contention of the plaintiff in both the suits was to the effect that although in the beginning suits were filed with deficit Court fee but subsequently Court permitted the plaintiff/Bank to make good the same. Hence, on the adjourned date of hearing, the deficit Court fee was paid, Accordingly the defect if any cured in view of Sections 148 and 149 R/W Order 7 Rule 11 of CPC, The Court for sufficient reasons has got powers to extend time to pay the Court fee.
2. Whereas, defendants submitted that in the absence of specific order by giving reasons to extend time to pay Court fee, it is not proper to assume that merely because cases were adjourned from 31.7.81 to some other dates the Court extended time to pay the deficit Court fee. Thus requested for dismissal of the suits.
Trial Court after hearing both sides on preliminary Issues passed an order on 16.7.88 holding Issues in both the suits in favour of the plaintiff/Bank.
3. Aggrieved by these two orders, defendants have preferred these two Petitions contending that -
Approach of the trial Court in holding issues in both the suits in favour of the plaintiff as incorrect.
In support of his contention, Sri T.S. Ramachandra, learned Counsel for the petitioner tried to explain the scope of Section 148 and 149 and Order 7 Rule 11 Proviso. Sections 148 and 149 read with Order 7 Rule 11 read as follows:-
SECTIONS 148 and 149 CPC:
"Where any period is fixed or granted by the Court for doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."
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 much fee is payable, to pay the whole 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."
ORDER 7 RULE 11 of CPC.
"The plaint shall be rejected in the following cases:
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued, but the Court-fee actually paid is insufficient and the plaintiff does not make good the deficiency within the time, if any granted by the Court;
(d) Where the suit appears from the statement in the plaint to be barred by any law;
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
According to him Order 7 Rule 11(c) says that in case plaintiff does not pay the requisite Court fee within the time granted by the Court, the Court shall reject the plaint. However, Proviso to Order 7 Rule 11 which came to be inserted by way of a Karnataka Central Amendment and which was given effect to in the year 1976 from 1.2.77 reads as follows:-
(1) Court shall not extend time to pay Court fee unless it gives reasons for such extension;
(2) Before extending time, Court shall satisfy that plaintiff was prevented by a cause which is exceptional in nature which prevented him from paying Court fee or supplying requisite stamp papers;
(3) The plaintiff was required to pay the Court fee within the time fixed;
(4) Court shall satisfy such a refusal to extend time would cause grave injustice to the plaintiff."
In view of the above mandatory requirements and in the absence of any application seeking extension of time, according to Sri T.S. Ramachandra, trial Court was not justified in accepting the deficit Court fee paid on 28.9.81 and ordering to register the plaint. In support of his contention he also relies upon a Division Bench Decision of this Court decided in the case of STATE OF KARNATAKA v. COIMBATORE PREMIER CONSTRUCTIONS, which reads thus:-
"The provisions contained in Rule 11(c) of Order 7 of the CPC are mandatory, There is no discretion or option left with the Court, but to fix time within which the plaintiff is required to supply sufficient stamp papers to make good the deficit Court fee, in a case where the plaint presented is written upon paper insufficiently stamped. Thus the Court must fix time for payment of deficit Court fee. Even then if the plaintiff fails to supply sufficient stamp paper, it will be open to the Court to reject the plaint straight away on noting that the Court fee paid on the plaint is insufficient and the plaintiff has failed to pay the deficit Court fee within the time fixed."
As an answer to these contentions, Sri B.R. Ashwathram, learned Counsel for the plaintiff/respondent submitted as follows:-
(1) Trial Court while passing orders on preliminary issues has not committed an act of error of jurisdiction;
(2) The order passed by the trial Court is a discretionary one and the same cannot be interfered with unless it is shown that such an order is arbitrary, perverse or capricious;
(3) While passing order the trial Court has complied with the mandatory requirements;
(4) No injury has been caused to the defendants by extending time to pay Court fee;
(5) This Court can interfere in the orders of the Court below when such orders are illegal and without jurisdiction;
(6) While passing order, if the trial Court has committed any mistake inadvertently, the same shall not result in penalysing a party;
In support of his contentions, Sri Ashwathram, relied upon the following Decisions - (1) In the case of KATHYEE COTTON MILLS LTD. v. R. PADMANABHA PILLAI AND ORS., explained the scope of Sections 148 and 149 of CPC, and Proviso to Order 7 Rule 11 of CPC which reads as follows:-
"Court has no power under Section 148 to extend a period fixed by statute and not fixed or granted by the Court. Section 149 gives power to the Court to allow a person to pay the deficit Court-fee at any stage which means including the stage of an appeal. It deals with the initial stage of allowing time, at any stage for payment of the additional Court-fees. Section 148 on the other hand, comes into play when once the time has been already fixed or granted by the Court, not only in matters of Court-fees, but also in all other cases and the Court is given the power to enlarge such period originally fixed or granted even though the period originally fixed or granted may have expired. Therefore, there is no conflict or exclusiveness between the two Sections. A party is not, as of right, entitled under Section 148 to get an extension or an enlargement of a period fixed or granted by the Court. That is a matter entirely within the discretion of the Court though no doubt such discretion should be exercised judicially and not capriciously or arbitrarily."
The time granted by the Court, under Section 149, read with Order 7 Rule 11 (c), is a period fixed or granted by the Court, within the meaning of Section 148 and the Court has got power to enlarge or extend the time originally fixed or granted by it. The proviso to Order 7 Rule 11 does not stand in the way of the exercise of that power, Sections 148 and 149 give an absolute power and discretion to the Court to grant time and later extend the same to such period as it may think fit. The proviso is more in the nature of a guidance or a direction as to the period to which the Court can exercise its discretion. It is not in any way mandatory in the sense that any act done in contravention of the same will be a void or an illegal act. The object of the proviso appears to have been only to put a check on the exercise of undue indulgence in favour of even undeserving parties. That it is not mandatory is to be seen from the fact that no penalty is attached in the said proviso."
(2) In Mahanth Ram Das v. Ganga Das, , it is held that-
"The High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment. Section 148, in terms, allowed extension of time, even if the original period fixed had expired, and Section 149 was equally liberal. A fortiori, those Sections could be invoked by the applicant, when the time had not actually expired. An order extending time for payment, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired.
The procedural orders though peremptory, (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed."
(3) For the proposition that scope of Section 149 of CPC and Section 5 of Limitation Act are different and in proper cases, the Court may suo-motu extend time to pay Court fee, without leaning on technicalities as the payment of Court fee is the question between the Government and the litigant. In State of Punjab v. Nand Kishore, , it is held as follows:-
"Applications under Section 5 of the Limitation Act for extending the period of limitation for filing an appeal where an appellant is prevented by sufficient cause from so doing within time are treated entirely on a different footing than applications under Section 149 of the Civil Procedure Code. Whereas each day's delay in filing an appeal beyond the period of limitation has to be explained by an appellant in cases covered by Section 5 of the Limitation Act to show that the appellant was prevented by sufficient cause from filing the appeal on each of those days no such consideration arises in applications under Section 149 of the Code.
It has been held by the Supreme Court in Ganesh Prasad v. Narendra Nath Sen, (though in a different context) that the question of payment of Court fee is primarily a matter between the Government and the person concerned and the other party cannot attack the order on the ground that it takes away the valuable right to plead the bar of limitation. Section 149 of the Code carves out an exception to the general rule contained in Section 4 and 6 of the Court Fees Act (about any document or proceeding filed in Court amounting to a legal institution or legal presentation of it if it is not affixed with the Court Fees chargeable on it) by giving to the Court concerned a power to permit a litigant to pay the requisite fee at any stage of the proceeding after the deficnietly stamped document has been filed therein and by further providing that on deficiency being so made up within the time allowed by the Court, the subsequent payment of the deficient Court fees would have the same effect as if proper and full Court fees had been paid in the first instance, If discretion under Section 149 of the Code of Civil Procedure is exercised by the Court a petition or appeal on which insufficient Court fees had been paid, would not become barred by time, if it was within time when originally instituted provided full fee leviable on it is paid with the leave of the Court even after the expiry of the period of limitation. An order under this Section can be passed by the Court suo motu in the peculiar circumstances of any case even without a formal application being made for the purpose."
IN THE CASE OF UNION OF INDIA v. ROSHANLAL, holding that under Section 149 of CPC the Court can extend time to pay Court fee even after expiry of time fixed held as follows:-
"It is true that a document not bearing proper Court fee cannot be considered to be validly presented to the Court, but the principles underlying Section 149 of the Code suggests that the question of Court fee is a question between the Revenue and the litigant and therefore, the Court has a discretion, albeit judicial discretion, to allow a litigant to pay the court fee prescribed for any document by the law, which he should have paid earlier and the subsequent payment is to have the same force and effect as if such fee had been paid in the first instance. The Court has really to keep all the relevant facts in view and then come to a decision whether or not to exercise judicial discretion in favour of the litigant concerned, bearing in mind the rule laid down in Foll.
Held: extension of one day could be granted to appellant for making good deficiency in court fee and appeal must be deemed to have been presented within limitation."
In a case where stamps are not available while instituting suits, in view of Sections 148 and 149 of CPC, the Delhi High Court in the case of Union Bank Of India v. Jagannaradhey Shyam And Co., and Anr. held as follows:-
"There can be no doubt that the appellant has every right to file the appeal even on the last date and also purchase the Court fee stamps on the same date.
In dealing with the application for condonation of delay for making good the deficiency in Court fees, it is the settled practice of this Court that the discretion conferred on the Court is normally expected to be exercised in favour of the litigant except in case of contumacious delay or positive mala fides or for reasons of similar type."
The known legal position is that the Revisional powers of High Court under Section 151 of CPC, shall be used only when the order to be interfered with is arbitrary, perverse, capricious or manifestly illegal. In discretionary orders Court has to see whether order in question is in the aid of rendering a just result but not to see from the angle that such an order suffers from illegality or irregularity in the absence of any loss or prejudice to the other side. For the above proposition, Sri Ashwathram relied upon the following Decisions -
1. H.S. Siddappa v. Lakshmamma and Anr., 1965 (1) Mys. U J. Page 232, it is held as follows:
"Even where the order of the subordinate Court suffers from any of the infirmities stated in Clauses (a), (b) and (c) of Section 115, the High Court has got discretion not to interfere with the said order. Where the order of a subordinate Court though it suffers from illegality or irregularity, has brought about a just result and where setting aside that order would bring about an unjust result, the High Court would not interfere with such an order."
2. In Raghavendrachari v. Ramanna, 1965 (2) Mys. L.J. Page 340 it took a view that if it is not shown that non-interference under Section 115 of CPC will not give rise to any grave injustice to other side, not proper to interfere. The relevant portion reads thus:-
"Where after treating the defendant exparte, the Court failed to examine the plaintiff or record any evidence and passed an ex parte decree, the decree is not according to law.
Even if the further order setting aside the ex-parte decree is illegal, if it has brought about a just result, the High Court will not interfere in revision, as it will only result in restoring an earlier illegal order."
3. In MANINDRA LAND AND BUILDING CORPORATION LTD., v. BHUTNATH BANERGEE AND ORS., the Supreme Court observed that the High Court can exercise its revisional powers under Section 115 of CPC only in cases involving irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction and not otherwise.
4. In the case of ULLAL RAGHUVIR RAO v. MRS. SAVITHRI BAI, ILR 1986 KAR 932 this Court took the view as in the above case.
5. In JAINAULLALBIN SAHEB v. DHANYAKUMARAIYA, regarding scope of Section 115 CPC, this Court held as follows:-
"It is possible that on a given set of facts and circumstances, a particular Judge may use his discretion in a particular manner. As Lord Denning often repeated - The function of the Superior Court is not to test the discretion by applying as to whether the Appellate or Superior Court would have come to the conclusion or a different conclusion. But it is tested only to see whether such discretion has been properly and not perversely exercised. The mere fact that this Court may have come to a slightly different conclusion on the same circumstances is not a reason why this Court should interfere with the discretion otherwise exercised by the lower Court."
Making reference to the legal position and the principles laid down -Sri. Ashwathram submitted that there is no illegality in the orders, under challenge, they have been made after exercising powers conferred with a view to do substantial justice to the parties. Thus, sought for dismissal of the. Revision Petitions.
4. From the above submissions, now it has to be seen, that whether trial Court was right in passing orders under challenge. Whether the said orders are in accordance with Sections 148 and 149 read with Order 7 Rule 11 CPC. A perusal of the orders make it clear that the trial Court accepted the plea of plaintiff without taking into consideration the effect of Sections 148 and 149 read with Order 7 Rule 11 (c) and Proviso to the said Order. Hence, it has to be said that the orders in question are resultant of non-application of mind to the relevant provisions. It is true that the Court has power to grant time to pay deficit Court fee in view of Section 5 of Karnataka Court Fees and Suits Valuation Act read with Sections 148 and 149 of Civil Procedure Code. But the discretion conferred on the Court to extend time to pay Court fee is further controlled by Order 7 Rule 11 (c) read with Proviso to the said Rule extracted above. In the orders there is no finding that non-payment of deficit Court fee was bona fide and the circumstances were beyond plaintiff's control. Also not mentioned in the order that reasons shown for failure to pay deficit Court fee, satisfactory and warrants for extension of time to pay the deficit Court fee.
From the above, it is clear that the trial Court while accepting deficit Court fee paid belatedly, leaned more in favour of doing substantial justice to the parties instead of making much about technicalities. However pious the intention of the trial Court in entertaining suits, but its approach would have been appreciated very much if it had passed its orders on preliminary Issues if it had passed the same by adhering to the requirements of Sections 148 and 149 and Order 7 Rule 11 of CPC and passed orders by giving reasons. Having not followed the same, it has to be said that orders under challenge require to be set aside.
Hence, both the orders are set aside. Petitions are allowed. The cases are remitted to the trial Court to decide the Issues in both the suits afresh after taking into consideration effect of Sections 148, 149 and Order 7 Rule 11 (c) CPC and its Proviso including law laid down by various High Courts and Supreme Court on the point. Also to see whether orders made in the order-sheet amounted to extension of time to pay deficit Court fee or otherwise and then to pass appropriate orders after hearing both sides. All other contentions are left open.