Madras High Court
No Appearance vs N.Manokaran on 12 January, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 12/01/2009 *CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA +CRP. PD. No.3214 of 2008 #Mayilathal $Ranjitham !FOR PETITIONER : No appearance ^FOR RESPONDENT : N.Manokaran :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.01.2009 Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD).3214 of 2008 and M.P.No.1 of 2008 Mayilathal ... Petitioner vs. Ranjitham ... Respondent This civil revision petition is preferred against the order dated 25.09.2007 passed by the learned Subordinate Judge, Dharapuram in I.A.No.346 of 2007 in O.S.No.20 of 2006.
For Petitioner : No appearance For Respondent : Mr.N.Manokaran ORDER
When the matter has been called, the learned counsel for the petitioner is absent. However, the learned counsel for the respondent is present.
2. A "resume" of facts, which are absolutely necessary and germane for the disposal of this revision would run thus:
The respondent presented a plaint without affixing suffcient court fee. Whereupon the lower court returned it granting two weeks' time. However, she represented the plaint after affixing proper Court fee; whereupon, the plaint was numbered as suit on 30.01.2006. Subsequently, the defendant filed I.A.No.346 of 2007 under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that the suit was bad for non-payment of appropriate court fee. The lower Court dismissed the said petition. Being aggrieved by and dissatisfied with the same, the present civil revision petition has been filed on various grounds.
4. The learned counsel for the respondent would submit that the period of limitation for filing the suit was up to 03.02.2006 as the agreement to sell was dated 02.02.2003; three years period was contemplated for performance itself; the suit itself was taken on file on 30.01.2006 well within the period of limitation and as such, absolutely, there is no merit in this revision.
5. Perused the records. A bare perusal of the plaint would reveal that the agreement to sell dated 02.02.2003, itself contemplated the performance period as three years. But the suit itself was filed and taken on file on 30.01.2006 and as such, the Court fee cannot be held to have been paid after the period of limitation. If at all, any deficit court fee is paid or time extended for payment after the period of limitation, then a serious scrutiny is contemplated at the level of the lower Court and that too, after giving notice to the defendant concerned. But, in this case, ex-facie and prima facie, it is clear that the facts are entirely different from the ones involved in the decision cited on the defendant's side and the lower Court in its impugned order clearly referred to all those facts and highlighted as to how the decisions cited on the side of the petitioner/defendant are not applicable to this case. As such, I could see no merit in this revision and accordingly, the same is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
vj2 To The Subordiante Judge, Dharapuram ================================ This case has been listed today (20.01.2009) under the caption 'For Being Mentioned' at the request of the learned counsel for the revision petitioner.
2. The learned counsel for the revision petitioner would submit that on 12.01.2009, he was waiting for a considerable time in the Court and since the Court proceedings went beyond 4.45 p.m. also, he could not remain in the Court and inasmuch as he had to attend to his personal work, he left the Court hall and thereafter he did not have had the opportunity of making his representation. Hence he prays for recalling the order and for passing a fresh order after hearing him also.
3. Heard the learned counsel for the respondent who had no serious objection for recalling the earlier order and for rehearing and passing orders on merits. Accordingly, by way of giving due opportunity to the revision petitioner, the earlier order dated 12.01.2009 is recalled and heard afresh both and the following order is passed on merits.
4. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision would run thus:
The respondent herein filed the suit O.S.No.20 of 2006 in Sub court, Dharapuram for specific performance on an agreement to sell. However, at the time of presenting the plaint, the full court fee was not paid, but only a part was paid, whereupon, the Court returned it granting two weeks time for payment of the deficit court fee and for compliance. However, within that time, the plaint was not re-presented. Hence, enclosing an application under Section 151 CPC to get the delay condoned in complying with the earlier return, the plaint was re-presented, whereupon the Court condoned the delay and accepted the Court fee and numbered the plaint on 30.01.2006.
5. The defendant after entering appearance filed I.A.No.346 of 2007 under Order 7 Rule 11(c) of Code of Civil Procedure for rejection of the plaint on the ground of non payment of appropriate Court fee in time as per the direction of the Court and that the delay also was not condoned judiciously. However, the lower Court dismissed the said I.A. Being aggrieved by and dissatisfied with the order of the lower Court, this revision has been filed on various grounds.
6. The learned counsel for the revision petitioner placing reliance on the grounds of revision would develop his argument to the effect that Order 7 Rule 11(c) of CPC coupled with its proviso ex facie and prima facie mandates and directs the Court to suo moto reject the plaint on non compliance with the payment of Court fee within the time granted by the Court concerned; in this case without even an application under Section 149 of C.P.C. simply based on some application under Section 151 of C.P.C. got the delay condoned in re-presentation and that too without the Court recording the reasons for condoning the delay. There at the Court entertained the plaint and numbered it as suit, which is liable to be rejected.
7. The learned counsel for the revision petitioner would place reliance on the decision of this Court reported in 2005 (5) CTC 401 [S.V.Arjunaraja v. P.Vasantha] and submit that the trial Court itself ought to have suo motu rejected the plaint de hors the I.A.No.346 of 2007 filed by the petitioner herein.
8. Whereas the learned counsel for the respondent/defendant citing the judgment of the Division Bench of this Court reported in 2003(3) LW 803 [K.Natarajan vs. P.K.Rajasekaran] would develop his argument to the effect that if at all the Court fee was paid beyond the prescribed period of limitation for filing the suit, the question of giving notice to the defendant before condoning the delay would arise. But in this case, well before the limitation period, admittedly the suit itself was numbered after the plaintiff having complied with the payment of deficit court fee and that too the filing of the application and getting the delay condoned in paying such Court fee all had taken place within the limitation period.
9. Indubitably and indisputably, the factual position is such that as per the suit agreement to sell three months' period for performance, came to an end by 03.02.2006, whereas the plaintiff's suit was taken on file on 30.01.2006. As such it is glaringly and pellucidly, palpably and incontrovertibly clear that well within the period of limitation the plaint itself was taken on file. On that ground itself, the revision petition could be dismissed in the wake of the Division Bench judgment of this Court reported in 2003 (3) LW 803 (cited supra). In fact the learned single Judge of this Court in the decision reported in 2005(5) CTC 401 (cited supra) followed the said Division Bench's judgment of this Court only.
10. The learned counsel for the revision petitioner would state that the judgment of the Division Bench of this Court cited supra did not advert to Order 7 Rule 11(c) CPC and in such a case, it cannot be taken as a binding precedent. The revision petitioner raises his plea based on Order 7 Rule 11(C) CPC and the proviso attached to it and pray this Court to lay down the law to the effect that the Court should reject the plaint if there is no payment of Court fee within the time granted by the Court for such payment of Court fee. I am at a loss to understand as to how the judgment of the learned single Judge of this Court could be pressed into service by the revision petitioner so as to buttress and fortify his plea.
11. My mind is redolent and reminiscent of the following excerpts from Salmond's jurisprudence relating to ratio decidendi:
"Having considered the extent to which courts are bound by previous decisions, we must now examine what constitutes the decision in a case and what it is that is actually binding on later courts.
First, however, we must distinguish what a case decides generally and as against all the world from what it decides between the parties themselves. What it decides generally is the ratio decidendi or rule of law for which it is authority; what it decides between the parties includes far more than just this. Since it would be obviously impracticable if there were no end to litigation and if either party to a legal dispute were at liberty to reopen the dispute at any time, the law provides that once a case has been heard and all appeals have been taken (or the time for appeal has gone by) all parties to the dispute and their successors are bound by the court's findings on the issues raised between them and on questions of fact and law necessary to the decision of such issues."
It is therefore clear that the ratio decidendi of a case alone should taken as a binding precedent. Here from a bare perusal of the judgment of the learned single Judge reported in 2005(5)CTC 401 would demonstrate and exemplify that in that case the facts involved were to the effect that the Court without even expecting an application under Section 149 CPC to be filed by the plaintiff to get the time extended for payment of Court fee, simply numbered the plaint and that too after the expiry of the period of limitation prescribed for filing the suit. As such the judgment rendered by the learned single Judge in that decision is only with regard to those factual circumstances and it cannot be taken that the learned single Judge laid down the law relating to application of Order 7 Rule 11(c) CPC in all matters irrespective of the factual matrix of cases.
12. The contention of the learned counsel for the revision petitioner that the Division Bench judgment of this Court cited supra did not adhere to Order 7 Rule 11(C) of CPC could not be countenanced for the reasons that the Division Bench made a clear distinction between the plaint taken on file as suit before the limitation period and after limitation period and certain excerpts from the said decision 2003-3-LW-803 would run thus:
"14. Of course, where the time granted by the Court to pay the deficit court fee falls within the period of limitation to file the suit, no notice need be given to the defendant/opposite party. It is desirable that whenever a plaint is presented, the same is verified and returned at least on the third day (excluding the holidays), if necessary pointing out the defects.
21. We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:
(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 words 'document' employed in Section 149 of Code of Civil Procedure would include the 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 days (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 not 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 represented 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 entirely) 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 of 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."
13. It is therefore clear that in a case of this nature, where the plaint itself was numbered before the limitation period after the plaintiff having complied with the direction for payment of deficit Court fee and that too after getting allowed the application under section 151 of CPC for condonation of delay in complying with the return, the question of applying Order 7 Rule 11(c) of CPC would not arise at all. The learned counsel for the revision petitioner also would submit that the Court should not have condoned the delay in a mechanical manner. Here no revision has been filed as against such an order passed under Section 151 of CPC. Furthermore, no notice under the said IA was also contemplated as everything happened before the expiry of limitation period prescribed for filing the suit. The lower Court in its wisdom thought it fit to condone the delay in re-presenting the plaint after paying deficit court fee and in such a case, it is not open for the defendant to file an application under Order 7 Rule 11(c) of CPC to get rejected the plaint and in view of the ratiocination adhered to by me supra, no interference with the order of the lower Court is required. Accordingly the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
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