Karnataka High Court
Krishnakudva And Anr. vs Ganapathy Hegde on 9 December, 2003
Equivalent citations: ILR2004KAR892
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER 7 RULE 11(c)(d) -- Deficit Court Fee -- Not paid -- Court went on granting time for the payment of deficit Court fee by exercising its discretion -- Such granting of time whether justified --HELD -- The Court could have exercised its discretion only if the two conditions imposed in the proviso to Order 7 Rule 11 are satisfied, namely, (1) the cause for preventing from correcting the valuation or supplying the requisite stamp papers should be of exceptional nature and (ii) the refusal to extend such time should result in grave injustice to the plaintiff. The Court below has not even referred to the proviso and the application has been determined without applying its mind to the conditions imposed by the proviso and, therefore, the whole exercise undertaken by the Court-below suffers from a grave illegality. Held: It is well-settled principle of law that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all and all other modes of performance are necessarily forbidden. The Court-below which extended the time for payment of deficit Court-fee from time to time, therefore, ought to have done it only if the plaintiff had satisfied the two conditions. The conditions should have existed cumulatively for the Court to have exercised its discretion in favour of the plaintiff. It was not enough if one of the conditions was satisfied and the other condition remained unsatisfied. One very relevant aspect to be noticed from the impugned order is that the Court-below had not even referred to the proviso and the application has been determined without applying its mind to the conditions imposed by the proviso and, therefore, the whole exercise undertaken by the Court-below suffers from a grave illegality in that the essential consideration for determining the application itself has been completely overlooked and the matter had been approached by the Court by placing reliance on its inherent power to grant time in the proceedings. It is also noteworthy that the plaintiff does not appear to have pleaded any cause much less an exceptional cause as required by law for not paying the requisite Court-fee. The exercise of power by the Court-below, therefore, suffered from an inherent illegality. (B) CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT NO. V OF 1908) -- SECTION 151 -- ORDER 7 RULE 11 (c) AND (d) -- INHERENT POWERS -- To revise its own order -- Can be done if it is shown that the earlier order passed is a result of a mistake on the part of the Court itself or that it was obtained, by misrepresentation or fraud. (C) CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT NO. 5 OF 1908) -- ORDER 7 RULE 11 -- ADJOURNMENT GIVEN -- As time always sought by plaintiff -- Was there error of jurisdiction -- HELD -- There is gross error of jurisdiction because the Court in so adjourning the case was acting in flagrant disregard of the Rules of Procedure stipulated in the proviso to Order 7 Rule 11 C.P.C. (D) CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT NO. V OF 1908) -- ORDER 7 RULE 11 --SETTLEMENT TALKS BETWEEN PARTIES GOING ON -- Cause for delay in payment of Court fee -- HELD -- Settlement takes between parties could not have been treated by the Court-below as a cause of an exceptional nature enable it to condone the delay. CRP allowed. ORDER A.V. Srinivasa Reddy, J.
1. This revision petition is preferred by the defendant in O.S.No. 126/ 2000 against the order dated 3rd November, 2001 rejecting I.A. No. IV filed by him for setting aside the order passed by the Court-below condoning the delay in payment of the deficit Court fee by the plaintiff.
2. The defendant filed I.A. No. IV contending that the order passed by the Court-below suffers from improper exercise of jurisdiction since the Court had no jurisdiction to extend the time on 17-8-1999 for payment of the deficit Court-fee. The defendant contended that the acceptance of the deficit Court-fee by the Court is contrary to Order 7, Rule 11(c) (d) of the Code of Civil Procedure and therefore sought for rejection of the plaint filed by the plaintiff. The Court-below refused to exercise its jurisdiction under Order 7, Rule 11 C.P.C on the ground that the granting of time by the Court for the payment of deficit Court-fee was done on due exercise of the Court's discretion and, therefore, the said order does not call for any interference. Being aggrieved by the refusal of the Court-below to reject the plaint, the defendant-petitioner has come up in this revision.
3. I have heard Mr. G. Balakrishna Shastry, learned Counsel for the petitioner and Sri. C.R. Subramanya learned Counsel for respondent.
4. Order 7, Rule 11 C.P.C lists the various grounds for rejection of the plaint. Herein we are concerned with the ground under Clause (c). Clause (c) of Order 7, Rule 11 C.P.C reads:
"11. Rejection of plaint.-The plaint shall be rejected in the following cases:-
(a) ..... ......
(b) ...... .......
(c) 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;
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."
The question as to how the power under Order 7, Rule 11 C.P.C has to be exercised had come up for consideration of the Division Bench of this Court in P.A. NAGARAJA GUPTHA v. DR. S. SUBRAMANYAN, ILR 2001 Karnataka 868. This Court on examining the issue observed that the power to extend time for payment of deficit Court fee vested in the Court under Section 148 C.P.C has been subjected to restrictions as incorporated in the proviso and any exercise of this power has to be done by the Courts in accordance with the conditions stipulated in the proviso. The ratio decidendi laid down by the Court on the aforesaid reasoning is to be found at para 7, which reads:
"As noticed above, proviso to Rule 11 of Order VII was inserted in the Code of Civil Procedure by Act 104 of 1976. The purpose of insertion of the said proviso was obviously for expediting disposal of cases. Under the proviso, the Court cannot extend time for payment of deficit Court fee unless it is satisfied that the plaintiff was prevented by any cause of exceptional natural from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and refusal to extend such time would cause grave injustice to the plaintiff The two conditions incorporated in the proviso are ex facie cumulative and the Court can exercise its discretion of extending time for payment of deficit Court fee, if and only if, for reasons to be recorded, it finds that both the said conditions exist."
There can be no doubt that the Court is empowered to extend time for payment of deficit Court fee but by introducing the proviso to Rule 11 of Order VII C.P.C these powers have been curtailed and subjected to certain restrictions as could be found in the proviso. The two conditions imposed in the proviso are (i) the cause for preventing from correcting the valuation or supplying the requisite stamp papers should be of exceptional nature and (ii) the refusal to extend such time should result in grave injustice to the plaintiff.
5. In the light of the proviso, the point to be determined in this revision is whether the Court-below was justified in extending time for payment of deficit Court-fee.
6. It is well-settled principle of law that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all and all other modes of performance are necessarily forbidden. The Court-below which extended the time for payment of deficit Court-fee from time to time, therefore, ought to have done it only if the plaintiff had satisfied the two conditions. The conditions should have existed cumulatively for the Court to have exercised its discretion in favour of the plaintiff. It was not enough if one of the conditions was satisfied and the other condition remained unsatisfied. One very relevant aspect to be noticed from the impugned order is that the Court-below had not even referred to the proviso and the application has been determined without applying its mind to the conditions imposed by the proviso and, therefore, the whole exercise undertaken by the Court-below suffers from a grave illegality in that the essential consideration for determining the application itself has been completely overlooked and the matter had been approached by the Court by placing reliance on its inherent power to grant time in the proceedings. It is also noteworthy that the plaintiff does not appear to have pleaded any cause much less an exceptional cause as required by law for not paying the requisite Court-fee. The exercise of power by the Court- below, therefore, suffered from an inherent illegality.
7. The Court having extended time for the plaintiff to pay deficit Court-fee the defendant appeared and filed I.A.No. 4 and sought for rejection of the suit under Order 7, Rule 11 (c ) and (d). The Court-below while rejecting the LA has reasoned that it has inherent powers to grant time for payment of Court-fee and a party to the suit can not ask the Court to revise its own order. This reasoning of the Court-below is also erroneous in that the Court has inherent jurisdiction to revise its own order when it is called upon to do so by an affected party on being shown that the earlier order passed is a result of a mistake on the part of the Court itself or that it was obtained by misrepresentation or fraud. In SAMAR BHUSAN v. SAKU PADA , dealing with the question as to when a Court could exercise its inherent jurisdiction to correct its own order a learned Single Judge of the Calcutta High Court laid down the law, as under:
"It is true that under Section 151 C.P.C a Court cannot reverse its earlier order on the ground that it is subsequently found to be erroneous on merit. But this principle shall not be applicable in a case in which the order is passed under a misunderstanding of the case. In such a case the Court has inherent jurisdiction to set aside its own order. In the case of miscarriage of justice the injustice so done must be remedied on the principle actus curia neminem gravabit- the act of the Court shall prejudice no person. Such an abuse by the Court may arise either (a) by the default or mistake of the Court itself or (b) as the result of misrepresentation by or fraud of a party."
Though it could be said in the present case that the impugned order had not occasioned on account of any misrepresentation or fraud played by the plaintiff, the impugned order certainly was as a result of a mistake committed by the Court itself in not determining the question before it with reference to and in accordance with the conditions contained in the proviso to Order 7, Rule 11 C.P.C. In this fact situation the defendant was certainly entitled to file the application calling upon the Court to revise its own order. In G. VENKATA NARASIMHA v. NARASIMHULU AIR 1967 Andhra Pradesh 141, a learned Single Judge of the Andhra Pradesh High Court has held that the opposite party is entitled to take objection for the extension of time granted for payment of deficit Court-fee and the Court is bound to consider the same. The ratio decidendi laid down by the Court reads:
"The respondent is entitled to notice before time is granted to the appellant for payment of deficit Court-fee on memo of appeal. When time is granted without notice to the respondent, it is open to him to file an application to the Court to dismiss the appeal on the ground that the delay ought not to have been excused."
"The counsel for respondent/plaintiff has urged before me that as there was a fresh negotiation going on between the parties in the presence of respectable person and the respondent made a further payment of Rs. 51000/- through a self cheque dated 15-9-2000 bearing No. 291030 drawn on Syndicate Bank, Hampankatta, in favour of 2nd petitioner Ganesh Kudva, with an understanding that the matter will be amicably settled and when the petitioners also made application to the A.D.L.R. for correcting the extent of the land in the Records maintained by the A.D.L.R. in pursuance of the said payment and under such circumstance, it could be gathered that there are valid reasons for non-payment of Court fee till 23-2-2000."
The above reason assigned by the plaintiff for the delayed payment of the Court-fee could not have been treated by the Court-below as a cause of an exceptional nature' which prevented the plaintiff from correcting the valuation or supplying the requisite Court-fee for refusing to exercise jurisdiction under Order 7 Rule 11 C.P.C. In all probability the suit was instituted by the plaintiff only to provide himself a bargaining chip with the help of which he could coerce the defendants into agreeing for a settlement which is to his liking. Having failed in that endeavour, ultimately, he made good the deficit. By condoning the said delay in the absence of any exceptional reason the Court-below has acted in total disregard of the rule of procedure stipulated in Order 7, Rule 11 C.P.C., without recording any reason.
8. In SURYA DEV RAI v. RAM CHANDER RAI , the Apex Court while making a comparative study of the certiorari jurisdiction and the revisional jurisdiction of the High Courts noticed that, the parameters for exercising the jurisdiction by the High Court to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction though similar, the High Court while exercising the supervisory jurisdiction can itself make an order in supersession or substitution of the order of the Subordinate Court. The observations made by the Apex Court to the above effect are to be found at para 38 and they read:
"In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Court but can not substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case."
The only cause for the delayed payment of the Court-fee as given by the plaintiff is that there was some settlement talks going on between the parties which, in the light of the language employed in the proviso to Order.7, Rule 11 C.P.C could not have been treated by the Court-below as a cause of an exceptional nature enabling it to condone the delay. In the facts and circumstances of the case the only order that could have been passed by the Court-below was to reject the plaint for non-compliance of the direction of the Court to make good the deficit Court-fee. Having not done so, the Court should have acted at least when the defendants approached it with I.A.No. 4 for recalling the earlier order and asking the Court to reject the plaint. On an overall consideration of the facts and circumstances of the case and the rule of procedure that was required to be followed by the Court under Order.7, Rule 11 C.P.C, I am of the considered view that this is a fit case wherein this Court should not only set aside the impugned order but also substitute the same by allowing I.A.No. 4 and rejecting the plaint.
9. In the result the revision petition is allowed and the impugned order is set aside.
I.A. No. 4 filed by the petitioner-defendant in the court-below is allowed. The plaint is rejected/under Clause (c) of Order 7, Rule 11 C.P.C.