Allahabad High Court
Ravindra Kumar Gupta And 3 Ors. vs Rakesh Kumar Gupta And Another on 5 October, 2013
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Lucknow Bench, Lucknow ******************* A.F.R. Reserved Case :- CIVIL REVISION No. - 103 of 2013 Revisionist :- Ravindra Kumar Gupta And 3 Ors. Opposite Party :- Rakesh Kumar Gupta And Another Counsel for Revisionist :- Sudeep Seth Counsel for Respondent:- A.P. Singh Gaur, Prashant Singh Gaur ******************** Hon'ble Ritu Raj Awasthi,J.
1. Heard Mr. Sudeep Seth, learned counsel for revisionists as well as Mr. A.P. Singh Gaur duly assisted by Mr. Prashant Singh Gaur, learned counsel for respondents and perused the records.
2. The instant civil revision filed under Section 115 of the Code of Civil Procedure, 1908 (for short 'CPC') arises against the order dated 17.7.2013 passed by the learned Civil Judge (Senior Division), Court No. 24, Lucknow in Regular Suit No. 35 of 2009 (Rakesh Kumar Gupta Vs. Ravindra Kumar Gupta and Others) whereby the Court fee submitted on 24.4.2013 through the application (C-62) by the respondents-plaintiff was accepted without, there being any application for condonation of delay in filing the Court fee or extension of time to deposit the same and the application (C-57) filed under Order VII Rule 11 read with Section 151 CPC was rejected.
3. The legal question which cropped up in the present revision for consideration is whether the learned Trial Court was correct in accepting the said Court fee in absence of any application for condonation of delay in depositing the Court fee within the time provided by the Court or application for extension of time to deposit the same and without recording the satisfaction that plaintiff was prevented by any cause of exceptional nature from depositing the Court fee within time fixed by the Court.
4. The factual matrix of the present controversy relates to a suit for declaration and permanent injunction registered as Regular Suit No. 35 of 2009 (supra) which was filed on 20.1.2009. The valuation of suit was indicated as 18.00 lakhs on which insufficient Court fee of Rs. 700/- was paid. The issue relating to undervaluation of suit and non-payment of requisite Court fee was decided vide order dated 15.1.2011 directing the respondent no. 1-plaintiff to deposit the requisite Court fee in the light of Section 7 (iv) (a) of the Court Fee Act, 1870 (for short 'Court Fees Act') and do necessary pairvi within a week. The respondent-plaintiff was required to deposit the deficit Court fee of Rs. 1,35,407.50/-.
5. The learned Trial Court vide order dated 21.1.2011 had directed the respondent-plaintiff to comply the earlier order of depositing the requisite Court fee. Thereafter, repeated adjournments were sought by respondent-plaintiff for depositing the requisite Court fee and all such adjournments were allowed by the Trial Court. 14 such adjournments in continuation were taken by the respondent-plaintiff for depositing the requisite Court fee. On 04.11.2011, an application for amendment of plaint (A-45) was preferred by respondent-plaintiff wherein the assessed Court fee of Rs. 1,35,407.50/- was admitted by the respondent-plaintiff. The said amendment application remained pending for disposal till 03.09.2012 and the Trial Court repeatedly granted adjournments and it was finally heard and vide order dated 07.09.2012 was allowed.
6. The learned Trial Court vide order dated 06.11.2012 granted last opportunity to respondent no. 1-plaintiff to deposit the Court fee and had allowed adjournments but the respondent no. 1-plaintiff did not deposit the requisite Court fee. On 27.11.2012, the revisionist-defendant preferred application under Order VII Rule 11 CPC for rejection of plaint. No objection to the said application was filed by respondent-plaintiff. It was on 31.1.2013 that the learned Trial Court granted last warning to respondent no. 1-plaintiff to deposit the requisite Court fee, however, the Court fee was not deposited.
7. Thereafter, on 20.2.2013 the Trial Court rejected the application for further adjournment and observed that there is no justification for granting another opportunity to respondent no. 1-plaintiff for complying the earlier orders to deposit the Court fee. On 25.3.2013, the Trial Court heard the application (C-57) preferred under Order VII Rule 11 CPC and reserved the order. On 18.4.2013, the Trial Court again heard the application preferred under Order VII Rule 11 CPC and fixed 24.4.2013 for orders with opportunity granted to respondent no. 1-plaintiff to submit his defence prior to delivery of the order. On 24.4.2013, the respondent no. 1-plaintiff submitted the Court fee along with application (C-62) i.e. for submitting Court fee. No application for condonation of delay or for grant of extension of time by showing the cause of an exceptional nature for not depositing the Court fee or any other application for recall of the orders dated 31.1.2013 and 20.2.2013 was filed. The Trial Court, however, allowed the application (C-62) for depositing the Court fee at the cost of Rs. 500/- and rejected the application (C-57) filed under Order VII Rule 11 CPC by passing the impugned order on the premise that the Court fee has been received on record and the matter may be decided on merit.
8. Learned counsel for revisionist vehemently submitted that the Trial Court has failed to exercise its jurisdiction by not deciding the application under Order VII Rule 11 CPC on merits. It has acted in exercise of jurisdiction with material irregularity and illegality by accepting the Court fee without recording any reason and satisfaction that respondent no. 1-plaintiff was prevented by any cause of exceptional nature from supplying the stamp paper within time fixed by the Court and refusal to extend time would cause grave injustice.
9. It is submitted that the learned Trial Court has failed to consider and appreciate the mandatory provisions of proviso appended to Order VII Rule 11 CPC whereby the Trial Court cannot refuse to decide the application under Order VII Rule 11 CPC on the premise that the Court fee has been received.
10. It is further submitted that the Trial Court has failed to consider and appreciate that after closure of opportunity on 20.2.2013 to deposit the Court fee, there was no justification to allow the application of respondent no. 1-plaintiff to deposit the said Court fee without recording any reason or satisfaction as mandatorily required by the proviso appended to Order VII Rule 11 CPC. The learned Trial Court had granted repeated adjournments without cogent reasons and in violation of Order XVII Rule 1 CPC which restricts the number of adjournments to three during the hearing of the suit.
11. It is submitted that the discretion conferred on the Court shall not be exercised in such arbitrary and illegal manner and the Trial Court has committed manifest error of law in not recording any reason or satisfaction that respondent no. 1-plaintiff was prevented by any cause of exceptional nature from supplying the stamp paper within time fixed by the Court.
12. Submission is that the Trial Court ought to have decided the application (C-57) filed under Order VII Rule 11 CPC on merits.
13. Mr. Sudeep Seth, learned counsel for revisionists submits that after insertion of the proviso to Order VII Rule 11 CPC the time to deposit the Court fee should not have been extended without recording the reasons and satisfaction that had prevented the respondent no. 1-plaintiff to deposit the Court fee in time and Section 149 CPC should not apply to such cases. It is submitted that the extract of Law Commission report and statement of objects and reasons for inserting the proviso to Order VII Rule 11 CPC clearly indicates that once time is given it should not be extended.
14. In support of his submissions, learned counsel for revisionists relies on the following judgments:
(I) Anantha Naicken Rama Vs. Vasudev Naickan and Others; AIR 1967 Kerala 85, particularly paragraph 3, where the Court has observed that once the Court had decided the issue relating to proper Court fee on the plaint and it has found that deficit Court fee has not been paid, the proper thing would have been to stop further hearing of the matter and direct the plaintiff or the party concerned to pay the necessary Court fee and in default of such compliance, the plaint was liable to be rejected. Relevant paragraph 3 of the judgment on reproduction reads as under:
"3. That is absolutely an erroneous view taken by the trial court. If it is found at the hearing that deficit court fee has not been paid, the proper thing would be to stop further hearing of the matter and direct the plaintiff or the party concerned to pay the necessary court fee and then only resume the hearing; and in default of such compliance, to reject the plaint or memorandum of appeal. I am only adverting to this aspect for considering the correctness or otherwise of the order of the learned District Judge which is under attack in this revision petition. The question of the correctness of the court fee paid on the plaint formed the subject of an issue, and the trial court has expressed an opinion that court fee has to be paid on the basis of the valuation of the suit. Which means, the plaintiff has not paid the proper court fee on the plaint."
(II) Sheela Nehru Vs. Nirmala Sharma & Others; AIR 2007 (NOC 67 (H.P.) where the plaintiff was called upon to pay Court fee within one month from the date of judgment, if the Court fee was not paid within specified time, it was held that the plaint was liable to be rejected instead of dismissing the suit.
(III) Buta Singh (Dead) By LRS. Vs. Union of India; (1995) 5 SCC 284, particularly paragraph 9, wherein it has been held by the Apex Court that the discretion conferred upon the Court to give time to the applicant to make up the deficiency of Court fee under Section 149 CPC is the judicial discretion. The Court is not bound to exercise the discretion unless the applicant shows sufficient cause for the failure to pay deficit Court fee or he was under bona fide mistake in payment thereof. Mere poverty or ignorance or inability to pay the Court fee at the time of presenting the appeal/suit is not always a good ground for indulgence under Section 149 CPC. Bona fide mistake on the part of applicant in making the deficit Court fee may be a ground to exercise discretion in favour of the applicant. Relevant paragraph 9 of the judgment on reproduction reads as under:
"9. Having given anxious consideration to the respective contentions, question arises whether the claimants would be allowed to pay the deficit court fee. It is true that s.149 CPC gives power to the Court to give time to the appellant to make up deficiency of court fee when the whole or any part of the fee prescribed under the Court Fee Act to pay court fee on the Memorandum of Appeal (MOA) but had not been paid while presenting the same; but the power of the court is one of discretion and not as of right. Generally, before the appeal is admitted under Order 41 Rule 9, the court would exercise the discretion on showing sufficient cause for not making the required fee on the MOA. The discretion conferred on the court by s.149 is a judicial discretion. The court is not bound to exercise the discretion unless the applicant shows sufficient cause for the failure to pay deficit court fee or he was under bona fide mistake in payment thereof. Mere poverty or ignorance or inability to the court fee at the time of presenting the appeal is not always a good ground for indulgence under s.149. Bona fide mistake on the part of the appellant or applicant in making the deficit court fee may be a ground to exercise discretion in favour of the appellant. It is the duty of the Registry before admitting the appeal to point out to the appellant or his counsel that deficit court fee is payable on the MOA and some reasonable time may be given for payment of the court fee. The MOA would be returned to do the needful. If the deficit court fee is not made up and presented within the time enlarged under s.148 CPC, there would be no appeal in the eye of law unless the delay is condoned. If the party deliberately to suit his convenience paid insufficient court fee, the mistake is not a bona fide but one of choice made by the party in making the deficit court fee. In that situation, even after pointing out the need to make the court fee and given time, if the court fee is not paid and MOA is represented within the enlarged time, it would be open to the court either to reject the MOA or refuse to condone the delay for not showing sufficient cause thereon. Therefore, the court is required to exercise its judicial discretion keeping the facts and circumstances in each case and not automatically for mere asking that the indulgence be shown to the party to make good the deficit court fee. In the latter event, it is not the exercise of the judicial discretion but showing undue indulgence."
(IV) Ganapathy Hegde Vs. Krishnakudva and Another; (2005) 13 SCC 539, particularly paragraph 5, wherein it has been held by the Apex Court that the proviso to Order VII Rule 11 CPC is attracted when the time for payment of Court fee has been fixed by the Court and the Court fee is not supplied within the time appointed by the court. It was observed that as per said proviso the plaintiff should have been called upon to assign and show the availability of any cause of an exceptional nature for delay in supplying the requisite stamp paper within the time fixed by the Court. Paragraph 5 of the judgment on reproduction reads as under:
"5. In our opinion, the High Court was not right in forming the opinion which it did. The proviso to Order 7 Rule 11 CPC is attracted when the time for payment of Court fee has been fixed by the Court and the Court fee is not supplied within the time appointed by the court. In the case at hand, though the plaint as originally was not affixed with the requisite court fee stamps, but before the suit was registered, the deficit court fee was supplied. The present one is not a case where the court had fixed the time for payment of requisite stamp paper which was not done within the time fixed and thereafter the plaintiff was called upon to seek an extension of time. Had that been the case, then, under the proviso, the plaintiff would have been called upon to assign and show the availability of any cause of an exceptional nature for delay in supplying the requisite stamp paper within the time fixed by the court. The trial court was also empowered under Section 149 CPC to extend the time. In the present case, the order passed by the trial court accepting the deficit court fee paid on 23-2-2000, thereafter registering the suit on 10-4-2000 and consequently the order dated 3-11-2001 rejecting the defendant-respondents' application under Order 7 Rule 11 CPC were perfectly in accordance with law and within the discretion conferred on the trial court with which the High Court ought not to have interfered in exercise of the jurisdiction vested in the High Court under Section 115 CPC. The order of the High Court, if allowed to stand, is likely to occasion failure of justice."
(V) Chandrakant V Assudev Lotlikar and Others Vs. Vaman Mahadev Lotlikar and Others; AIR 1989 BOMBAY 17, particularly paragraphs 8 & 9. It was observed by the Court that the proviso to Order VII Rule 11 enables the Court to extend the time for making the payment of Court fee due only when a cause of exceptional nature has been shown and if extension is not granted, a grave injustice would be caused to the plaintiff. Except in those cases, there is no discretion left to the Court to grant extension of time to pay the deficient Court fee. Relevant paragraphs 8 & 9 of the judgment on reproduction read as under:
8. There is great force in the submission of Mr. Lotlikar. In fact, R. 11 of Order 7 provides that the plaint shall be rejected inter alia 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. In the proviso, it is laid down 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. A plain reading of the above provision of law makes it clear that the view taken by Mr. Usgaonkar that the plaint can be rejected only partially in respect of the alternative prayer cannot be accepted at all. In fact, Cl. (c) speaks of insufficiently stamped plaint and this means that either the plaint is properly stamped and then can be entertained or is not properly stamped and then is to be rejected. The proviso enables the Court to extend the time for making the payment of the court-fee due only when a cause of exceptional nature has been shown and if extension is not granted, a grave injustice would be caused to the plaintiff. Except in those cases, there is no discretion left to the Court to grant extension of time to pay the deficient court-fee.
9. This flows clearly from the provision of R. 11 of O. 7. The decision of the Punjab and Haryana High Court in Balwant Singh's case (AIR 1976 Punj and Har 316) (FB) does not in any manner help the case of the appellants. In fact, in that case, apparently, the plaint was not disclosing a cause of action in respect of the part of the claim against some of the defendants. The Court held that the plaint could not be rejected as a whole since Clause (a) of Rule 11 of Order 7 deals with the situation where the plaint does not disclose at all a cause of action and in that case the cause of action and in that case the cause of action has been disclosd at leaset partly. Then Koshal, J. (as he then was) observed in para 12 as under :--
"I fully agree and would like to emphasise that the very idea of a plaint being rejected 'in part' is repugnant to the provisions of Rule 11 of Order VII of the Code of Civil Procedure. The plaint in a suit is the document evidencing the suit and not the suit itself and can, therefore, either be rejected or retained which, in other words, merely means that it can either be thrown out or proceeded with. It cannot be torn up in two parts, one of which is discarded and the other entertained. This is clearly deducible from the language of the rule. Expressions like 'in its entirety' or 'in part' are thus wholly inept in relation to the rejection of the plaint."
In other words under Rule 11 of Order 7, a plaint can either be rejected in toto or proceeded with. It cannot be torn up in two parts, one of which is discarded and the other entertained. To some extent, the same view was taken in K.P. Subrahmanyam's case (supra) for the learned single Judge of the Andhra Pradesh High Court has observed that even when a portion of a plaint alone needs rejection, the whole of it has to be rejected. In another decision, viz. in Bansilal V. Som Parkash, AIR 1952 Punj 38, while dealing with Order 7, Rule 11 and a partial rejection of the plaint, it was held that the law does not change merely because the plaintiff chooses in one suit to combine several causes of action against several defendants which the law allows him. It still remains one plaint and, therefore, rejection of the plaint must be as a whole and not as to a part. Therefore, in the light of the above discussion and on the strength of the above authorities, I am unable to accept the submission of Mr. Usgaonkar that the suit ought not to have been rejected on the basis of the non0-payment of court-fee on the alternative prayer. It may be mentioned here that in spite of the two months' time granted to the appellants to pay the deficient court-fee, they failed to do it nor they applied for extension of time for such payment. Thus, it is obvious that no cause at all was shown to justify and extension of time for the payment of the deficient court-fee. In the circumstances, no discretion was left to the learned trial Judge and he had to act under the mandatory provision of Rule 11 Order 7.
(VI) S.A. Khadeer Vs. G.V.R. Anjaneyulu; 2003 (5) ALD 577, particularly paragraphs 4 & 5. It was held that the discretionary power available to the Court under Section 149 CPC to extend time for payment of deficit Court fees must be exercised by a reasoned order. The power given to the Court under proviso to Order VII Rule 11 CPC to extend time for payment of Court fee is for the cause of an exceptional nature and after recording the reasons. Inability to raise money is not a reason to exercise the discretion under Section 149 CPC. Section 149 CPC has to be read together with Order VII Rule 11 CPC.
(VIII) Shiv Cotex Vs. Tirgun Auto Plast Private Limited and Others; (2011) 9 SCC 678, particularly paragraphs 14, 15, 16 & 18. It was observed by the Apex Court that cap of three adjournments provided in proviso to Order XVII Rule 1, although not mandatory but ordinarily should be maintained. It may be relaxed only in suitable case, on 'justifiable cause' i.e. cause which is not only 'sufficient cause' but one which makes request for further adjournment unavoidable and a sort of compelling necessity.
(IX) K.K. Velusamy Vs. N. Palanisamy; (2011) 11 SCC 275, particularly paragraph 12, wherein the Apex Court has held that the power under Section 151 CPC can be exercised to deal with any particular procedural aspect which is not provided expressly or impliedly in CPC, if ends of justice was warranted and to prevent abuse of process of the Court. Relevant paragraph 12 of the judgment on reproduction reads as under:
"12. The respondent contended that section 151 cannot be used for re-opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See: Padam Sen vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."
15. Learned counsel for respondents, on the other hand, submitted that, without there being any assertion regarding factual matrix of the case, the suit was filed in the year 2009 in which written submission was filed by the revisionists-defendants. The Court had framed issues in the year 2010 itself with a preliminary issue regarding valuation of suit and payment of proper Court fees. The learned Trial Court had decided the said preliminary issue against the respondent-plaintiff, however, the provisions under which such orders were passed are relevant. It is submitted that Section 6 of the Court Fees Act provides for payment of proper Court fees and adjudication of objections raised by any party regarding Court fee. For convenience Section 6 of the Court Fees Act is reproduced below:
"6. Fees on documents filed, etc., in Mofussil Courts or in Public offices.- (1) Except in the Courts hereinbefore mentioned, no document of any of the 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 contained any fraction of a rupee below twenty-five naye paise 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, 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 he 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."
16. It is submitted that bare perusal of aforesaid provision would corroborate that when the question regarding payment of Court fee is raised otherwise than under sub-Section (3) of Section 6 of the Court Fees Act, it is incumbent upon the Court under sub-Section 4 to decide such question before proceedings with any other issue.
17. Submission is that in all probabilities the learned Court below while deciding the preliminary issue against the respondent-plaintiff as such had passed the order under Section 6 (4).
18. It is submitted that under sub-Section 5 of Section 6 it is provided that 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. It is also submitted that Section 6-B (4) of the Court Fees Act empowers the Court to recover the deficiency in Court fees from erring party as arrears of land revenue and till such deficiency is made good, further proceedings shall not be made in the suit. A plaintiff without paying proper Court fee cannot even withdraw his plaint, under Order XXIII CPC.
19. Submission is that unless and until the deficiency in Court fee is reported by the Munsarim of the Court at the time of institution of suit, the Court can recover the deficient Court fee as arrears of land revenue but cannot either reject or dismiss the suit under Section 6 (3) and the provision appended to Section 6 (3) of the Court Fees Act will come into play only when deficiency in Court fee is reported by an Officer mentioned in Section 24-A of the Court Fees Act.
20. Mr. A.P. Singh Gaur, learned counsel for respondents submitted that the learned Trial Court has powers under Section 6 of the Court Fees Act to extend time because Section 6 (4) deals with the word 'issue'. It is submitted that the respondent-plaintiff were stopped on account of financial constraints from depositing the Court fee and, as such, had moved several applications for adjournments which were allowed by the learned Trial Court till 20.2.2013. As such, it should be deemed that the Court had extended time suo motu and thereafter only on 18.4.2013, the application under Order VII Rule 11 CPC was heard and the next date was fixed as 24.4.2013 and on that the requisite Court fee was deposited in the Court. Thus, there was approximately delay of two months in depositing the Court fee, in case the period is to be counted from 20.2.2013 i.e. the date on which the Court had rejected the adjournment application.
21. Learned counsel for respondents further submitted that Order VII Rule 11 CPC though provides that reasons shall be recorded for extension of time, however, in the last line of the said proviso discretion is granted by the Court in cases where refusal to extend such time will cause grave injustice to the plaintiff.
22. Submission is that the Court can extend the time in cases where extreme injustice would be caused to a party.
23. It is submitted that in the present case since the issues were framed and the hearing in the suit had started in the year 2010, as such, the suit could have been decided on merit and rejection of plaint was not justifiable as it would allow multiplicity of litigation. The plaintiff would be entitle to file another suit on the same cause of cause under Order VII Rule 13 CPC.
24. Learned counsel for respondents emphasized that the provisions contained in procedural laws are hand made for administration of justice and not to promote technicalities which restricts judgment on merits. Provisions contained in the Code of Civil Procedure, 1908 give ample power to Trial Court either under Section 151 CPC or under Section 94 (e) CPC to promote adjudication of dispute on merits. Such bona fide exercise of jurisdiction is neither excessive nor deficient, hence cannot be challenged under Section 115 of the Code of Civil Procedure, 1908.
25. Mr. Prashant Singh Gaur, learned counsel for respondents submitted that the case laws relied by learned counsel for revisionists would not be applicable in the present controversy as in all such cases either the plaint itself was not registered or the application filed under Order VII Rule 11 CPC was allowed by the learned Court below. It is also submitted that the High Court has granted indulgence only in such cases where the application filed under Order VII Rule 11 CPC was decided without giving reasons.
26. It is submitted that in the present case, the Court has given reason by observing that objection of depositing Court fee with delay is only a technical objection, it is expedient in the interest of justice that suit is decided on merit. Delay caused due to non-filing of Court fee within time can be compensated by cost, as such, there are sufficient reasons given in the impugned order to allow the depositing of Court fee and rejection of application filed under Order VII Rule 11 CPC. There is no infirmity or illegality in the order impugned.
27. In support of his submissions, learned counsel for respondents relies on the judgment in the case of Mavji Kanji Jungi Vs. Premji Punja Hodas; AIR 1992 GUJRAT 147, particularly paragraph 25, wherein the Court has held that in spite of the fact that the Court below had rejected the plaint under Order VII Rule 11, the said order could have been recalled under Sections 151, 148 and 149 CPC. Relevant paragraph 25 of the judgment on reproduction would read as under:
"25. The ruling of this Court in the case of Vasantrao Laxmanrao Sahane V. Sanghvi Amritlal Becharlal (1966) 7 Guj LW at page 840 buttresses the aforesaid view taken by me. It has been held in para 6 at page 848 of the reported ruling:
'It is now well-settled by a series of decisions of several High Courts that the High Court is not bound to interfere in revision in all cases in which it is found that the subordinate Court has acted without jurisdiction or or failed to exercise jurisdiction or acted illegality or with material irregularity in the exercise of jurisdiction. The High Court will exercise its revisional powers only in aid of justice and not merely to give effect to a technicality which would not further the ends of justice. Where the High Court finds that substantial justice has been done between the parties by the order of the subordinate Court, the High Court will not interfere with such order merely because the cae comes within any of the three clauses of Section 115. See the decision of this Court in Jagmohandas vs. Jamnadas, (1965) VI GLR 49: (AIR 1965 Guj 181).' The aforesaid observation of this Court in its ruling in the case of Vasantrao Laxmanrao Sahane (supra) are on all fours applicable in the present case."
28. It is further submitted that this proposition of law has been upheld in the case of Ishwar Dayal and another Vs. Hill Top Finance Co. (Pvt.) Ltd.; 1997 (1) ARC 128, wherein in paragraph 8 the Court has observed as under:
"8. A perusal of the above provisions of law clearly indicates that the Court can allow the time at any stage of the proceedings and even without the aid of Section 148 can extend the time in its discretion. In other cases, namely, Nanick Mahato Vs. Ganga Kada Mahadeo, 81 Cal WN 950 and Ganges River Transport v. Reliance Jute, 86 Cal WN 443, a contrary view was taken and it was held that the Court can set aside the order rejecting the plaint even though the period of limitation for the order rejecting the plaint even though the period of limitation for the filing of the suit had expired. In may view, therefore, application under Section 151 for setting aside the rejection of a plaint under Order VII, Rule 11 of the Code of Civil Procedure for non-payment of Court fee cannot be rejected on the ground that on the date on which such application was moved the suit had become bared by time. Such an application has to be decided on other consideration like conduct of the plaintiff and the other circumstances of the case to arrive at a conclusion whether indulgence of the Court under Section 151 of the Code of Civil Procedure would be justified. I may mention that by virtue of the earlier order passed by this Court no such point was open for contest between the parties and the only question left for decision was whether the expiry of the period of limitation barred the jurisdiction of the Court to Act under Section 151. In my view the expiry of the period of limitation does not debar a Court from exercising powers under Section 151 to set aside the rejection of a plaint under Order VII, Rule 11 of the Code of Civil Procedure."
29. It is submitted that similar issue came up before the Madras High Court in the case of (Kolisetti) Basavayya and others Vs. Mittapalli Venkatappayya and another; AIR 1926 Madras 676 wherein it has been held that the Court has the discretion to extend the time to any limit within which deficient Court fee may be paid, and that if the fee is paid within the time fixed the plaint shall stand good as on the date of its presentation. In case the Court fee is paid after the time fixed and has not asked the Court to extend the time for payment of Court fee, but the Court nevertheless excuses the delay and receives the fees, it will be deemed that the Court has implicitly although not explicitly extended the time. Relevant paragraph of the judgment on reproduction reads as under:
"Order 7, Rule 11 declares that when a plaintiff does not pay the deficient Court-fee within a time to be fixed by the Court the plaint shall be rejected. That the Court must fix a time within which the deficient Court-fee shall be paid, and has no discretion to refuse to fix it, is settled law. The Court also has discretion to extend the time already fixed. Section 149, enacted in order to set at rest a matter on which the case law was conflicting, implies that the Court may, in its discretion, at any state, allow a party to pay the deficient Court-fee. But this will not override Order 7, Rule 11 in the sense that Section 149 gives the Court any discretion to refuse to grant the time which Order 7 Rule 11 says it shall grant : see Achut Ramachandra V. Nagappa Bab Baliya (1) and Juvan Das V. Khushibi Ram (2). This seems to make it clear that the Court has discretion to extend to any limit the time within which the deficient Court-fee may be paid, and that if the fee is paid within the time fixed the plaint shall stand good as on the date of its presentation. What is the law then when the party pays beyond the time fixed and has not asked the Court to extend the time for payment, but the Court nevertheless excuses the delay and receives the fee? I think the only reasonable interpretation is that the Court has implicitly, although not explicitly, extended the time. Two courses are open to the Court in such cases; either it may reject the plaint or it may accept it, and both courses are within its discretion. That is, whether it rejects or accepts, a superior Court will not as a rule interfere. When the Court has accepted a belated payment but has not explicitly extended the time, the natural inference is that it intended to extend the time and in effect did so: See Gopal Proshad Bhagat V. Rajendra Lal Panja (3), Maria Thangathammal V. Iravatheswara Iyer (4): Priyanath V. Meajan (5); Amir Hussain Khan V. Nanak Chand (6); and Raj Kishori Koer V. Madan Mohan Singh (7). An extension of time to quote authorities was held to imply an extension of time to pay. To the other effect, namely, that the Court has no discretion to admit payment after the time fixed is a ruling in Brahmomoyi V. Andi Si (8) under the old code. In Midnapur Zamindary Company Ltd., V. Secretary of State (9) the appellate Court refused to interfere with an order by the lower Court rejecting the plaint because the additional Court-fee had not been paid within the time fixed. Possibly the language used is too strong when the learned Judges say that the Subordinate Judge had "no other alternative but to reject the plaint." Section 149 is not referred to in the judgment. The Full Bench case in Padmanund Sing V. Anant Lal Misser (10) was under the old Code and therefore the discretion given by Section 149 was not considered. In Budhan Sha V. Sitanath Sha (11) it was held that Section 149 will not avail if the payment is not made within the time fixed under Order 7 Rule 2. In that case the prior Court had first dismissed the suit and on review held that Section 149 gave it discretion to excuse and condone the delay. The ground on which the learned Judges held that Section 149 will not avail was that it only applies to cases where the payment has been made within the time fixed, and that it gives no discretion to a Court to condone a payment made after the time fixed. But, with respect, I think that this is giving too narrow a construction to the wording of Section 149. That section is one of the general provisions of the Code not liable to annulment or alteration by any proceedings under Part X, and if there is any conflict between such a general provision and a rule under the first schedule, I take it that the general provision must prevail. The section appears to me to give a Court wide discretion, once the time for payment has been fixed, either to allow payment at any stage or to disallow it. I am not prepared to hold that the order of the District Munsif excusing delay in re-presenting the plaint was illegal."
30. I have considered the submissions made by the parties' counsel and gone through the record.
31. Before deciding the question involved in the present revision, it would be expedient to first go through the relevant provisions of law.
32. Section 148 CPC provides power to the Court for enlargement of time to do any act prescribed or allowed by this Code. Section 148 CPC on reproduction reads as under:
"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."
33. Section 149 CPC provides power to make up deficiency of Court fees which on reproduction reads as under:
"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 if such fee had been paid in the first instance."
34. Section 151 CPC gives inherent power to the Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of law. Section 151 on reproduction reads as under:
"151. Saving of inherent powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
35. The provision to reject the plaint on certain grounds is provided under Order VII Rule 11 CPC which on reproduction reads as under:
"Order VII Rule 11. Rejection of plaint.- 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 doe so;
(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;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper 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 for correcting the valuation or supplying the requisite stamp-paper, 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."
36. It is to be noted that the aforesaid proviso to Order VII Rule 11 was inserted by the Parliament by Act No. 104 of 1976 which came into effect w.e.f. 01.02.1977.
37. Order XVII Rule 1 CPC after amendment w.e.f. 01.07.2002 on reproduction reads as under:
"Order XVII Rule 1. Court may grant time and adjourn hearing.-(1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing.
Provided that no such adjournment shall be granted more than three times to a party during hearing of the suits."
38. The aforesaid provisions are to be read in consonance in order to give full application to the problem in hand.
39. Chronological evidence of the case in hand make it lucid that the respondent no. 1-plaintiff had filed a suit in January, 2009 indicating the valuation as Rs. 18.00 lakhs on which insufficient Court fee was paid. The learned Trial Court had framed an issue relating to undervaluation of the suit and non-payment of Court fee. The said issue was decided directing the respondent-plaintiff to deposit the requisite Court fee in the light of Section 7 (iv) (a) of the Court Fees Act and do necessary parivi within a week. The respondent-plaintiff was required to deposit the deficient Court fee which was to the tune of Rs. 1,35,407.50/-. Several adjournments were sought by respondent-plaintiff for depositing the Court fee till the Trial Court vide order dated 20.2.2013 had rejected the adjournment application and observed that there was no justification for granting another opportunity to respondent-plaintiff for complying the earlier orders to deposit the Court fee.
40. It is to be noted that the respondent-plaintiff had moved an application for amendment of the plaint on 04.11.2011 wherein they had admitted the Court fee assessed at Rs. 1,35,407.50/-. The said amendment application remained pending for quite sometime and it was finally allowed on 03.09.2012. The learned Trial Court vide order dated 06.11.2012 had granted last opportunity to the respondent-plaintiff to deposit the said Court fee by allowing the adjournment, however, the respondent-plaintiff did not deposit the same. On 31.1.2013, the learned Trial Court had granted last warning to the respondent-plaintiff to deposit the Court fee. It was thereafter that on 20.2.2013 the Trial court had rejected the adjournment application. Application (C-57) filed under Order VII Rule 11 CPC by the revisionist-defendant was heard and orders were reserved on 25.3.2013. No objection to the said application was filed by the respondent-plaintiff. However, it appears that the said application was not decided and on 18.4.2013 the learned Trial Court again heard the said application and fixed 24.4.2013 for orders with liberty to respondent-plaintiff to submit his defence prior to delivery of the order. It was on 24.4.2013 that the respondent-plaintiff submitted the Court fee along with application (C-62) which relates to depositing of Court fee in the Court. There was no application for condonation of delay in filing of Court fee. There was also no application for extension of time by showing cause of exceptional nature for not depositing the Court fee.
41. It is also to be noted that no application for recall of orders dated 31.1.2013 and 20.2.2013 was moved by the respondent-plaintiff. The learned Trial Court ultimately on 06.07.2003 had heard the parties and vide impugned order dated 17.7.2013 had allowed the application (C-62) of the respondent-plaintiff for depositing of Court fee at the cost of Rs. 500/- and had refused to decide the application (C-57) preferred by the revisionists-defendants under Order VII Rule 11 CPC on merits on the premise that the Court fees have been received on record.
42. There is no dispute to the legal proposition that the Court has discretionary power to grant extension of time to make good the deficiency in Court fee, however, the said discretion shall be exercised in a judicious manner and for the ends of justice, it should not be allowed to misuse or abuse of process of law. The power given under Section 149 CPC is the power of judicial discretion to the Court. The said judicial discretion shall be exercised in a reasonable and fair manner as has been observed by the Apex Court in the case of Buta Singh (Dead) by LRS. (supra). The Court is not bound to exercise the discretion unless the applicant shows sufficient cause for the failure to pay deficit Court fee within time provided by the Court or he is under bona fide mistake in payment thereof. If the party deliberately to suit his convenience paid insufficient Court fees, the mistake cannot be said to be bona fide but one of choice made by the party in making the deficit Court fee. In that situation, even after pointing out the need to make the Court fee and given time, if the Court fee is not paid, it would be open to the Court either to reject the plaint or refuse to condone the delay for not showing sufficient cause thereon. The Court is required to exercise its judicial discretion keeping the facts and circumstances in each case and not automatically for mere asking that indulgence be shown to the party to make good deficit Court fee. In the latter event, it is not the exercise of the judicial discretion but showing undue indulgence.
43. The proviso appended to Rule 11, Order VII CPC clearly provides that the time fixed by the Court for correction of the valuation or supply of requisite stamp paper shall not be extended unless the Court for the reasons to be recorded, is satisfied that plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp paper, 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 learned Trial Court by the impugned order has not recorded its satisfaction by giving reasons that the plaintiff was prevented by any cause of exceptional nature for correcting the valuation or supplying the requisite stamp paper, 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, as such, I am of the considered view that the Trial Court has failed to exercise its jurisdiction by not deciding the application filed by the revisionists-defendants under Order VII Rule 11 CPC on merits.
44. The statement of aims and objects of the proviso which was inserted to Rule 11 Order VII CPC vide Act No. 104 of 1976 w.e.f. 01.02.1977 reads as under:
"Sub-clause (iii).- There is divergence of judicial opinion as to whether the time fixed by the court under Rule 11 may be extended by it under Section 148. A proviso is being added to Rule 11 to provide that the time fixed by the court for the correction of the valuation or for the supply of the requisite stamp paper 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 paper within the time fixed by the court and that refusal to extend the time would cause grave injustice to the plaintiff."
Hence, after the insertion of proviso to Rule 11 Order VII CPC it cannot be said that once the Court fee has been accepted by the Court it is deemed that time was extended to deposit the said Court fee.
45. As noted above, the respondent-plaintiff had not moved any application for condonation of delay in filing the requisite Court fee within the time provided by the Court. They had also not moved any application for extension of time and had also not moved any application for recall of orders dated 31.1.2013 and 20.2.2013.
46. The learned Trial Court was also required to consider that unnecessary adjournments one after other shall not be granted for making good the deficiency in Court fee without recording any reason for granting such adjournments, particularly when Order XVII Rule 1 CPC which was inserted vide Act No. 46 of 1999 w.e.f. 01.07.2002 restrict such adjournments to three times to a party during hearing of the suits.
47. The case laws relied upon by the respondents are not applicable to the present facts and circumstances of the case.
48. In the case of (Kolisetti) Basavayya and others (supra), the Court had no occasion to consider the applicability of proviso appended to Rule 11 Order VII PC as it has been inserted w.e.f. 01.02.1977.
49. The provisions of Order VII Rule 11 CPC are statutory provision with mandatory proviso appended to it, hence the plea of substantial justice cannot be resorted. The judgment in the case of Mavji Kanji Jungi (supra) relied by counsel for the respondent-plaintiff as such would not be of any assistance to him.
50. The judgment in the case of Ishwar Dayal and another (supra) relate to a case where the plaint was rejected under Order VII Rule 11 CPC. It was held by the Court that time for making good deficiency in Court fee can be extended under Sections 148 and 149 CPC and order can be recalled in exercise of powers under Section 151 CPC, however, in view of judgment in the case of K.K. Velusamy (supra) this judgment is of no help to respondent-plaintiff.
51. There is no dispute to the said legal proposition, however, in the present case, the learned Trial Court has refused to decide the application filed under Order VII Rule 11 CPC on merit and has failed to consider the proviso to Rule 11 Order VII CPC, as such, the said judgments would not be applicable to the present facts and circumstances of the case.
52. The legal position as emerges out from the provisions of law as discussed above and the judgments of various Courts cited by either side, the learned Trial Court has committed manifest error of law in not deciding the application filed under Order VII Rule 11 CPC on merits merely on the premise that the Court fee has been deposited by the plaintiff. The learned Trial Court should not have allowed the application of the respondent-plaintiff to deposit the Court fee without recording any reason and satisfaction as required under the proviso appended to Rule 11 Order VII CPC.
53. The civil revision as such is allowed. The order impugned dated 17.7.2013 passed in in Regular Suit No. 35 of 2009 (Rakesh Kumar Gupta Vs. Ravindra Kumar Gupta and Others) is set aside. The matter is remanded back to the Trial Court to decide the application (C-57) filed under Order VII Rule 11 CPC a fresh on merit in accordance with law. In case the learned Trial Court feels proper, it may grant time to respondents-plaintiff for showing cause of exceptional nature which had prevented them from depositing or supplying the requisite Court fee within the time as provided by the Court.
[Justice Ritu Raj Awasthi] Dated: 5th October, 2013 Santosh/-