Kerala High Court
C.V. Varghese And Anr. vs Devi Accademy And Ors. on 5 January, 1999
Equivalent citations: AIR 1999 KERALA 185, (1999) 2 CIVILCOURTC 146, (1999) 1 KER LJ 320, (1999) 1 KER LT 440, (1999) 2 LANDLR 416, (1999) 2 RECCIVR 177, (1999) 3 ICC 521, (1999) 2 CIVLJ 337, (1999) 2 CURLJ(CCR) 447
ORDER S. Sankarasubban, J.
1. Plaintiffs are the petitioners. The suit was instituted for money. According to them, for the second plaintiff, the first plaintiff made a cash deposit of Rs. 1,15,000/- with the first defendant and the suit was filed to recover the same. Along with the suit, a court-fee of Rs. 835/- was paid. The balance court-fee of Rs. 8,340/- was paid not in time. The balance court-fee ought to have been paid on 21-8-1997.
2. According to the plaintiffs, the case was posted for issues on 7-8-1997. But on that date the plaintiffs and counsel were absent because of an inadvertent mistake in noting the posting date as 1-9-1997 instead of 7-8-1997. Issues were framed and the case was posted on 21-8-1997 for paying balance court-fee. But the counsel for the plaintiffs was under the impression that the case was posted on 1-9-1997. He was not present in Court on 21-8-1997. Hence-, the balance court-fee was not paid on that date. On 21-8-1997, the plaint was rejected for non-payment of balance court-fee. On 3-9-1997 the plaintiffs filed an application under Section 151 of the Code of Civil Procedure supported by an affidavit stating the circumstances under which the balance court-fee was not paid in time. A separate petition was filed for receiving the balance court-fee. The Court dismissed the applications on the ground that the rejection of the plaint amounts to a decree and hence an appeal would lie and a petition under Section 151 will not lie.
3. Learned Counsel for the petitioners Shri N. Viswanatha Iyer brought to my notice the decision in Gopalakrishna Pillai v. Narayanan, AIR 1959 Ker 406. In the above case, Varadaraja Iyengar, J. was dealing with a similar question. In that case, time was given to the plaintiffs to pay the balance court-fee by 23-11-1953. But they paid only a portion of the amount. Therefore, the suit was dismissed on 7-12-1953. On 6-1-1954, the plaintiffs filed an application to restore the suit on payment of Rs. 55/- and seeking to reduce the plaint valuation for the purpose. The Court however directed payment in full and on default of the plaintiffs to comply, dismissed the application to restore. Subsequently, the plaintiffs paid the balance of Rs. 160/- and got the restoration application restored. The restoration application was dismissed on the ground that it was not maintainable. The rejection of the plaint was under Order 7, Rule 11(c) of the Code of Civil Procedure and there is an appeal provided against that. The plaintiffs contended that under the inherent powers of the Court, the Court can restore the suit. His Lordship considered the various decisions which were cited, viz., Rameshwardhari Singh v. Sadhu Saran, AIR 1923 Pat 354 and Bachan Singh v. Dasrath Singh, AIR 1935 All 985. His Lordship found that the Calcutta and Allahabad High Courts were of the view that the jurisdiction under Section 151 of the Code of Civil Procedure should not be exercised so as to deprive a defendant of the right obtained by him by virtue of the law of limitation. His Lordship then referred to the decision of the Travancore High Court in John v. Kuriyan, (1936) 26 Trav LJ 932, and the following observations were quoted from that judgment:
"The inherent power vested in a Court can be refused to be exercised only when there is any other effective remedy given to the party aggrieved, under the provisions of the Code. The effect of interpreting Order 45, Rule 1, C.P.C. (corresponding to Order 47, Rule 1 Indian) in the manner propounded by the Privy Council in Chhaju Ram v. Neki, AIR 1922 PC 112 will lead to the result that a plaintiff whose plaint is rejected for failure to pay the deficit court-fee therein cannot successfully have the order of dismissal set aside by way of review, except probably in cases where his failure to pay such deficit court-fee was due to a mistake or error committed by him in making , the valuation for his suit. In other cases, he has no right to come by way of review, on the strength of the Privy Council ruling. It cannot be that the Code renders no remedy to aggrieved parties in such cases."
Thereafter, the Court took the view that for the furtherance of substantial justice the principle can be adopted. I respectfully agree with the above decision. Learned Counsel also submitted that the cause of action was not barred on the day on which the application for restoration was filed.
4. In view of the above, I allow the Civil Revision Petition and allow I.A. No. 4299/97. The Court below is directed to accept the balance court-fee and restore the suit to file. There will be a direction to dispose of the suit within a period of six months from today.