Madras High Court
K.Rajendran vs S.Nagarajan on 20 July, 2012
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20 .07.2012 CORAM The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(PD) No.3798 of 2009 and M.P.No. 1 of 2009 K.Rajendran ... Petitioner Vs. S.Nagarajan ... Respondent Civil Revision Petition filed against the fair and final order dated 15.10.2009 made in I.A.No.354 of 2007 in C.F.R.No.8009 of 2007 on the file of the Principal Subordinate Judge, Gobichettipalayam. For Petitioner :- Mr.R.T.Doraisamy For Respondents :- Mr.N.Manokaran ORDER
This Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioner, who is the plaintiff in a suit for recovery of money based on a promissory note. He is aggrieved against the order passed by the Court below in I.A.No.354 of 2007 dated 15.10.2009 wherein and whereby the application filed under Sections 148 and 151 CPC was dismissed.
2. The short facts culled out from the pleadings are as follows:-
The respondent herein borrowed a sum of Rs.75,000/- from the petitioner on 17.6.2004 and executed a promissory note on the same day promising to repay the said sum with interest on demand by the petitioner. As the respondent did not pay the said sum, in spite of a notice issued by the petitioner on 12.11.2005, the petitioner came forward with the above said suit and filed the same on the file of the Principal Sub-Court, Gobichettipalayam on 10.4.2007. While filing the said suit, the petitioner has paid a sum of Rs.7,523/- towards the Court fee. As the Court below has found that the Court fee paid is deficient, the plaint presented by the petitioner was returned on 16.4.2007 by granting two weeks' time for payment of the deficit court fee. Admittedly, the petitioner did not pay the deficit court fee within the time stipulated by the court below and however re-presented the plaint with full Court fee only on 28.9.2007 along with an application filed under Sections 148 and 151 CPC seeking for condonation of a delay of 150 days in re-presenting the plaint. The said application filed by the petitioner was numbered as I.A.No. 354 of 2007. The petitioner filed an affidavit in support of the said application in I.A.No. 354 of 2007, wherein he has stated that he could not re-present the plaint by paying the deficit Court fee within the time granted by the Court as he was bed ridden for five months.
3. The said application was resisted by the respondent by filing a counter affidavit. The contention of the respondent before the court below is that the petitioner did not pay the deficit Court fee within two weeks' time granted by the court from 16.4.2007 and re-presented the plaint with payment of deficit court fee only on 28.9.2007 by which time the suit claim has become time barred. Therefore, according to the respondent, the plaint presented after the expiry of the time granted by the Court, that too, when the relief itself became time barred, cannot be entertained by the Court.
4. The Court below after considering the rival submissions of the parties and their pleadings rejected the application filed by the petitioner by its order dated 15.10.2009 on the ground that the petitioner did not file any application under Section 149 CPC and in the absence of any such application, the plaint cannot be taken on file. In support of its conclusion, the Court below relied on two decisions of this Court in S.V.Arjunaraja Vs. P.Vasantha (2005 (5) CTC 401) and V.N.Subramaniyam Vs. A.Nawab John and others (2007(3)CTC 144). As against the said order passed by the Court below, the present Civil Revision Petition has been filed by the petitioner.
5. The learned counsel appearing for the petitioner would submit that the petitioner was reasonably prevented from complying with the return of the plaint and to pay the deficit court fee within the time stipulated by the court below as he was bed ridden for a continuous period of five months. Consequently, the petitioner filed an application under Sections 148 and 151 CPC seeking for condonation of the delay in re-presenting the plaint with payment of the deficit court fee. Therefore, according to the learned counsel for the petitioner, the Court has got ample power either under Section 148 or under Section 149 of CPC to condone the delay and accept the deficit court fee paid by the petitioner. The learned counsel also submitted that even assuming that the application filed by the petitioner should have been made under Section 149 of CPC and not under Section 148 of CPC, mere wrong quoting of the provision of law would not disentitle the petitioner from seeking the relief. In support of such contention, the learned counsel appearing for the petitioner relied on the decision of this court reported in 2000 (3) MLJ 132 ( Pakkiammal Vs. Anaiappan).
6. Per contra, the learned counsel appearing for the respondent submitted that when the petitioner was granted sufficient time by the Court below for paying the deficit court fee, while returning the plaint presented by him on 16.4.2007, the petitioner ought to have complied with the same within the time stipulated and he cannot be permitted to re-present the same with the payment of deficit court fee after a period of 150 days of delay, especially when the suit claim itself became time barred in the mean time. Therefore, according to the learned counsel for the respondent the Court below has rightly rejected the application filed by the petitioner in I.A.No.354 of 2007. The learned counsel, in support of his contention, placed reliance on the following judgments:-
1. S.V.Arjunaraja Vs. P.Vasantha (2005 (5) CTC 401)
2. V.N.Subramaniyam Vs. A.Nawab John and others (2007(3) CTC 144)
3. Ramaiah and Another Vs. R.Palaniappan and Others (2007 (5) MLJ 559)
4. A.Gurunathan @ Sivaji Vs. J.Muthulakshmi and Others (2009 (3) MLJ 760)
5. B.S.Santhilal (deceased) and others Vs. J.Samidurai and Another ( 2010 (6) MLJ 16
6. Judgment of the Apex Court in Civil Appeal No. 4838-4840 of 2012 dated 3.7.2012 ( now reported in 2012 (4) CTC 206 (A.Nawab John and others Vs. V.N.Subramaniyam)
7. Heard the learned counsel appearing for the petitioner as well as the respondent and perused the material records placed before this court.
8. The point for consideration in this case is as to whether the petition filed by the petitioner under Sections 148 and 151 CPC seeking for condonation of delay of 150 days in re-presenting the plaint along with the payment of deficit court fee is maintainable and if so whether the reasons adduced by the petitioner for the delay is acceptable ?
9. The petitioner filed the suit for recovery of money based on a promissory note executed by the respondent on 17.6.2004. Admittedly, the said suit came to be filed only on 10.4.2007 with a payment of court fee of Rs. 7,523/-only. It is seen from the records that the learned Principal Sub-Judge returned the plaint on 16.4.2007 by granting two weeks' time for paying the deficit court fee. The petitioner admittedly did not pay the deficit court fee within the said time of two weeks granted by the Court and on the other hand re-presented the plaint with payment of full court fee only on 28.9.2007. The delay, which occurred in representing the plaint, is thus sought to be condoned by the petitioner by filing the above said application in I.A.No. 354 of 2007. At this juncture, before going into the question as to whether the petitioner is entitled to the relief sought for or not, the relevant provisions of Sections 148 and 149 of the Code of Civil Procedure Code are extracted hereunder for easy reference and understanding:-
148. Enlargement of time. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired.
149. Power to make up deficiency of court-fees. 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 is such fee had been paid in the first instance.
10. From a bare perusal of the above provisions made under the Code of Civil Procedure, 1908, it could be seen that the courts are empowered in their discretion to allow the payment of deficit court fee at any stage of the proceedings by exercising their power under Section 149 of the Civil Procedure Code. If such person pays the deficit court fee as allowed by the Court and upon such payment, the document shall have the same force and effect as if such fee has been paid at the first instance. Thus, the reading of Section 149 further makes one to understand that the question of limitation cannot be put against once the payment of the deficit court fee is made as allowed by the Court under Section 149 of CPC.
11. While coming to Section 148 CPC, it contemplates the enlargement of time for doing any act prescribed or allowed by the Civil Procedure Code to which any period is fixed or granted by the Court. The Court in its discretion may enlarge such period from time to time under Section 148 but not exceeding 30 days in total. Though originally Section 148 did not stipulate any maximum period for such enlargement, after the Amending Act 46 of 1999 which came into effect from 1.7.2002, such enlargement of period shall not exceed 30 days in total. By applying these two provisions viz., Section 149 and 148 of CPC, let me consider the case on hand.
12. Admittedly in this case, the petitioner has filed the suit with deficit court fee. No doubt, it is true that the Court has returned the plaint by granting two weeks' time for payment of the said court fee by its order dated 16.4.2007. Whether the Court below is right in doing so by granting two weeks' time without there being an application filed under Section 149 of the Civil Procedure Code and whether such exercise of power is within the scope and purview of those provisions of the Civil Procedure Code is the point to be considered first.
13. While considering the said question, it is useful to refer to the decision of this court reported in 2005 (5) CTC 401, (S.V.Arjunaraja Vs. P.Vasantha), wherein the scope of Sections 148 and 149 of the Civil Procedure Code was considered in detail. The learned Judge ultimately came to the conclusion that if time has been granted without any application or without recording the reasons, it is not valid under law since it would offend and infringe not only Section 149 of the Code but also the proviso to Rule 11 of Order 7 of the Civil Procedure Code. The relevant paragraphs of the said judgment are extracted hereunder:-
"10. Section 148 of Code of Civil Procedure, empowers the Court to grant time or enlargement of time, wherein also, the period is restricted, viz., not exceeding 30 days, in total. Therefore, the Court has no power to grant extension of time, under Section 148, C.P.C., for the payment of Court Fees and in fact, this provision may not be applicable for extending the time for payment of Court Fees and the appropriate provision must be Section 149, C.P.C.
11. Section 149 of the Code reads:
"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 Fees 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".(emphasis supplied) Under this provision, the Court has every power, to allow the plaintiff to pay the Court Fees in whole or in part at any stage, and on payment of such Court Fees, it will have the same force and effect, as if, such fee had been paid in the first instance. In this view, if the Court had granted time, invoking Section 149 of the Code, then, the defendant cannot have any grievance, the position being, on payment of the deficit Court Fees, it will have the same force and effect, as if, such fee had been paid in the first instance itself, though on the date of payment of the Court Fees, the suit might have been barred by limitation, thereby, saving the limitation itself.
12. Rule 11 of Order 7 of the Code, catalogue the grounds, on which a plaint could be rejected and one of the grounds i.e. (c), reads:
"where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
By introducing a proviso by Act 104 of 1976, a duty is cast upon the Court to record reasons, while granting the time and the proviso reads:
"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.
Thus, it is implied, when the plaintiff was unable to pay the requisite Court Fees, he should invoke Section 149 of the C.P.C. and upon invoking that section, the Court may extend the time, for the reasons to be recorded, not otherwise. It is stated in the proviso that the Court shall not extend the time, without assigning and recording the reasons, thereby showing, if time has been granted, without any application or without recording the reasons, it is not valid, under law, since it would offend and infringe, not only Section 149 of the Code, but also the above said proviso. In this view, if the Court had extended time, without recording reason, without the plaintiff seeking time to pay Court Fees, assigning reason, then, that extension, itself, should be held illegal and if it is so, if any Court Fees is paid later on, that will not have the effect as if, such Court Fees had been paid in the first instance, as saved in Section 149 of the Code."
14. Thus, from the reading of the above said decision of this court, it is seen that the very grant of time by the Court below on 16.4.2007 for payment of deficit court fee without there being any application under Section 149 CPC is not valid under law as the said grant of time was not supported by recording of the reasons as well. It is an admitted case that there was no application filed under Section 149 CPC for grant of time for payment of deficit court fee warranting an order of granting time of two weeks by the Court below on 16.4.2007. Thus, by applying the said decision of this court, it can only be concluded that the order dated 16.4.2007 granting time of two weeks for payment of deficit court fee itself is bad in law in the absence of any application filed by the petitioner under Section 149 CPC.
15. Though the learned counsel for the petitioner contended that the present application filed in I.A.No.354 of 2007 has to be treated as the one filed under Section 149 even though it is filed under Section 148 and 151 CPC as the wrong quoting of provisions of law would not be a fatal to the petitioner, a perusal of the prayer made in the petition filed under Sections 148 and 151 CPC would only show that there was no such prayer seeking for grant of time for payment of the deficit court fee, but it is only for condoning the delay of 150 days in re-presenting the plaint. A perusal of the affidavit filed in support of the said application also shows that the petitioner had sought for condonation of the delay of 150 days in re-presenting the plaint with deficit court fee and not sought for permission to pay the deficit court fee. As the order passed on 16.4.2007 itself is invalid and in the absence of any prayer in I.A.No.354 of 2007 seeking permission to pay the deficit court fee as contemplated under Section 149 of CPC, it has to be held that in effect there is no prayer for payment of the deficit court fee at all from the petitioner at any point of time. No doubt wrong quoting of the provision of law shall not dis-entitle a person to get the relief, provided such relief sought for is in confirmity with the actual or right provision of law ought to have been quoted. If the relief prayed for itself is certainly not the one which ought to be, the Court cannot substitute such pleading or prayer and grand the relief by following the principle that wrong quoting of provision is not fatal always. Hence, the learned counsel for the petitioner is not right in contending that there was a wrong quoting of provision of law.
16. Further, the trial Court, apart from following the above said decision reported in S.V.Arjunaraja Vs. P.Vasantha (2005 (5) CTC 401) has also relied on the decision of this court reported in V.N.Subramaniyam Vs. A.Nawab and others (2007(3)CTC 144) to reject the case of the petitioner. In the said case, the plaint filed by the respondents therein with deficit court fee was returned for certain defects including for payment of deficit court fee. The plaintiffs therein re-presented the plaint with a delay of 1328 days. Again the plaint was returned for non-compliance of the earlier queries and also for payment of deficit court fee. Once again the plaint was re-presented with a delay of 585 days by filing the condonation delay petitions in I.A.Nos. 75 and 76 of 2004. The said two interlocutory applications were allowed. Aggrieved against the said order passed by the Court, the second defendant in the said suit filed Civil Revision Petitions before the High Court. He was also aggrieved against the dismissal of his application in I.A.No. 3 of 2006 whereby he sought for for rejection of the plaint on the ground that the plaintiffs therein failed to invoke Section 149 CPC to enlarge the time for payment of deficit court fee and therefore the plaint filed by the plaintiffs therein is liable to be rejected. This court, after considering the various aspects of the matter, allowed the three Civil Revision Petitions by following the decision in S.V.Arjunaraja Vs. P.Vasantha (2005 (5) CTC 401) and other decisions of this court. The relevant paragraph of the said order is extracted hereunder:-
"7. A perusal of the impugned orders and the typed set of papers would clearly show that the delay condonation Applications have not been filed under Section 149, CPC or a separate prayer has been included to pay the deficit Court fee with such delay. In fact the said Applications have been filed under Sections 148 and 151, CPC to condone the delay of representation alone. The decisions in Padmidikkala Sitharamayya and Others V. Ivaturi Ramayya and another , 1938 MLJ 515 DB and S.V. Arjunaraja V. P.Vasantha 2005 (5) CTC 401, this Court held that in the absence of specific Application invoking Section 149, CPC and in the absence of any order passed by the Court granting time for payment or enlargement, the plaintiff is not protected and the Suit is liable to be rejected. It is also held that mechanical return of the Plaint, which cannot be said that an order has been passed, extending the time for payment of Court fees would save the limitation, if the Court fees is paid, after the period of limitation prescribed is lapsed."
17. The above referred order of the learned single Judge reported in V.N.Subramaniyam Vs. A.Nawab and others (2007(3)CTC 144) was challenged before the Hon'ble Supreme Court in Civil Appeal Nos. 4838-4840 of 2012 and the Hon'ble Supreme Court by its order dated 3.7.2012, reported in 2012 (4) CTC 206, dismissed the appeal filed by the appellants therein thereby confirming the order passed by this Court. The relevant paragraphs of the judgment rendered by the Hon'ble Supreme Court in the said decision are extracted hereunder:-
"36. This Court on more than one occasion held that the jurisdiction under Section 149 CPC is discretionary in nature. (See P.K. Palanisamy s. N.Arumugham & Another (2009 (9) SCC 173 and 2012 13 (SCC) 539).
37. It is well settled that the judicial discretion is required to be exercised in accordance with the settled principles of law. It must not be exercised in a manner to confer an unfair advantage on one of the parties to the litigation. In a case where the plaint is filed within the period of limitation prescribed by law but with deficit court fee and the plaintiff seeks to make good the deficit of the court fee beyond the period of limitation, the Court, though has discretion under Section 149 CPC, must scrutinise the explanation offered for the delayed payment of the deficit court fee carefully because exercise of such discretion would certainly have some bearing on the rights and obligations of the defendants or persons claiming through the defendants. (The case on hand is a classic example of such a situation). It necessarily follows from the above that Section 149 CPC does not confer an absolute right in favour of a plaintiff to pay the court fee as and when it pleases the plaintiff. It only enables a plaintiff to seek the indulgence of the Court to permit the payment of court fee at a point of time later than the presentation of the plaint. The exercise of the discretion by the Court is conditional upon the satisfaction of the Court that the plaintiff offered a legally acceptable explanation for not paying the court fee within the period of limitation. " (emphasis supplied)
18. Thus, the said decision relied on by the trial Court in V.N.Subramaniyam Vs. A.Nawab and others (2007(3)CTC 144) having been confirmed by the Hon'ble Supreme Court, it is not necessary to refer the other decisions relied on by the learned counsel for the respondents, as I am fully convinced that the order passed by the court below does not warrant any interference as the same is fully supported by the order of the learned single Judge of this court reported in 2007 (3) CTC 144 (V.N.Subramaniyam Vs. A.Nawab and others) as confirmed by the Hon'ble Supreme Court in Civil Appeal Nos. 4838 to 4840 of 2012 dated 3.7.2012 as well as the order passed by the learned single Judge of this court reported in 2005 (5) CTC 401 (S.V.Arjunaraja Vs. P.Vasantha). The decision reported in 2000 (3) MLJ 132 ( Pakkiammal Vs. Anaiappan) relied on by the learned counsel for the petitioner to show that wrong quoting of the provision of law cannot be a reason for rejecting his petition will not come to his rescue in any manner, in view of my discussion and finding given above in this aspect. As I have already found that the petitioner has not at all made any application under Section 149 at any point of time and as the very grant of time by the Court below for payment of deficit court fee by its order dated 16.4.2007 itself is not valid and sustainable in law, the present application filed by the petitioner before the Court below that too seeking only for condonation of delay of 150 days in re-presenting the plaint without there being any prayer seeking for permission to pay the deficit court fee is not sustainable. Consequently, the claim of the petitioner as well as the argument advanced by the learned counsel for the petitioner do not merit consideration.
19. No doubt, a decision of the Hon'ble Supreme Court reported in 2009 (9) SCC 173 (P.K.Palanisamy Vs. N.Arumugham and Another) was sought to be relied on by the petitioner. But on reading the said judgment, I find that the facts therein are distinguishable as the plaintiff therein had filed an application under Section 148 read with Section 151 seeking time for payment of the deficit court fee. But, in this case, I have already pointed out that there was no such application filed by the petitioner at any point of time and on the other hand, an application filed in I.A.No.354 of 2007 under Sections 148 and 151 CPC was seeking for condonation of a delay of 150 days in re-presenting the plaint alone and not for seeking for permission for payment of deficit court fee. At any event, this decision of the Hon'ble Supreme Court reported in 2009 (9) SCC 173 (P.K.Palanisamy Vs. N.Arumugham and Another) has been taken note of and considered by the Hon'ble Supreme Court in the recent decision referred to above in Civil Appeal Nos. 4838 4840 of 2012 dated 3.7.2012 reported in 2012 (4) CTC 206 . Therefore, I am of the view that the said decision reported in 2009 (9) SCC 173 (P.K.Palanisamy Vs. N.Arumugham and Another) is not going to help the petitioner in any manner as the facts therein are totally distinguishable.
20. For the foregoing reasons, I find no merits in the Civil Revision Petition and accordingly the same is dismissed as devoid of merits. Consequently, the connected M.P. is also dismissed. No costs.
krr/ To The Principal Subordinate Judge, Gobichettipalayam