Andhra HC (Pre-Telangana)
S.A. Khadeer vs G.V.R. Anjaneyulu on 23 June, 2003
Equivalent citations: 2003(5)ALD577
ORDER V. Eswaraiah, J.
1. This Civil Revision Petition is filed against the order dated 25-1-2001 made by the Senior Civil Judge, Vijayawada in numbering the suit by accepting the deficit Court fee pursuant to the order dated 8-12-2000 made in I.A. No. 1941/2000 by extending further time for payment of the requisite Court fee.
2. The plaintiff filed the suit against the petitioner herein for recovery of the money based on the pronote executed on 2-11-1997. The plaint was presented on 2-11-2000 by paying Court fee of Rs. 100/-out the Court fee of Rs. 5,026/- payable by the plaintiff. The plaintiff filed the application under Section 148 read with Section 151 Code of Civil Procedure to grant 15 days time to file the necessary Court fee. On 2-11-2000 i.e. the date on which the plaint was presented, it is stated in the accompanying affidavit filed in support of the said application filed under Section 148 R/W Section 151 CPC which was numbered as I.A. No. 1740/2000 that he returned from Hyderabad and found that day (2-11-2000) is the last date for filing the suit as such there is no time to secure the money for Court fee and he could not be able to affix the Court fee and prayed for grant of 15 days to pay the Court fee for the above said suit. On the said application, the Court below considered his application filed in I.A. No. 1740/2000 and granted 15 days time till 17-11-2000. He has not complied with the said order but came up with another application in I.A. No. 1869/2000 under Section 148 r/w Section 151 CPC to grant further time of 15 days to pay the deficit Court fee. The said application was filed on 17-11-2000 and the reasons stated in the said application was that he filed petition seeking time for payment of deficit Court fee and as such the Court granted time for 15 days but he could not be able to secure money to pay deficit Court fee even on 17-11-2000 and, therefore, he may be granted further time of 15 days to pay the deficit Court fee. The said application was considered and again granted 15 days time till 30-11-2000 to pay the deficit Court fee. On 30-11-2000, he has filed another application in I.A. No. 1925/2000 to grant further time of 15 days to pay the deficit Court fee as he could not secure the money in spite of his best efforts to pay the deficit Court fee and, therefore, he may be granted further time of 15 days. The said application was also considered and that being the third application, 3 days time was granted to pay the deficit Court fee by order dated 7-12-2000. The respondent filed another application I.A. No. 1941/2000 on 6-12-2000 to grant 3 more days time to pay the deficit Court fee and the said application was considered under Sections 148 and 151 of CPC and granted 3 days time for payment of the deficit Court fee by order dated 8-12-2000. Thereafter, the deficit Court fee was paid and the suit was numbered as O.S. No. 23/2001 by order dated 25-1-2001. Questioning the said proceedings of the Court below, the Civil Revision Petition is filed by the defendant.
3. A counter has been filed by the plaintiff stating that the application for permission to defer the payment of the deficit Court fee was filed along with the plaint and the plaint was returned on 14-12-2000 and it was represented on 17-12-2000 and again time for payment of deficit Court fee was sought for and it was granted ultimately and the suit was numbered after payment of deficit Court fee and the delay in payment of deficit Court fee was mainly due to nonavailability of stamps at Vijayawada. Any way it is not a matter, which can be considered under Article 227 of Constitution of India.
4. The power of the Court to allow the person to make deficit Court is under Section 149 of CPC. Under Section 149, where part of any Court fee prescribed is not paid, the Court may, in its discretion allow such payment of Court fee and upon such payment of the Court fee paid pursuant to the order of the Court shall be treated as if it is paid in the first instance. The power available to the Court is only under Section 149 CPC to extend for payment of the deficit Court fee. It is a discretionary power. The discretion must be exercised by a reasoned order. The reasons stated by the plaintiff is that he was not able to secure the money and the Court fee at the first instance, could not be paid and the Court below granted 15 days time to pay the deficit Court fee by order dated 2-11-2001 granting time till 17-11-2001 in I.A.No. 1740/2000.
That order was not complied with. The plaintiff filed a petition under Section 148 of CPC to enlarge time fixed by the Court for payment of the deficit Court fee. Under Section 148 of CPC, where any period is fixed or granted by the Court, the Court may, enlarge such period in its discretion. The only reason stated by the plaintiff in the applications was that he could not secure the money and in the last application filed by him it is stated that he secured the money for the Court fee but the stamp vendor did not provide any Court fee stamps. The case of the plaintiff was that from 2-11-2000 to 6-12-2000 i.e., he was not having money and on 6-12-2000 he came up with further application to grant three more days time to pay the Court fee.
5. Under Order VII, Rule 11 of CPC the plaint shall be rejected if the requisite Court fee is not paid within the time fixed by the Court. Under proviso to Clause (d) of Rule 11 of Order VII, the Court shall not extend the time for payment of Court fee unless reasons are recorded and there are satisfactory reasons to the effect that the plaintiff was prevented by a cause of an exceptional nature from paying the Court fee. In the instant case, the only reason put forth by the plaintiff was that in spite of his best efforts, he could not secure the money for the payment of Court fee and he has filed the applications one after another and the Court below, without recording any reasons, simply extended the time from time to time. The reasons put forth by the plaintiff before the Court below are altogether different one from that of the reasons stated in the counter that he could not pay the Court fee mainly due to the nonavailability of the stamps at Vijayawada which is contrary to his own affidavit filed before the Court below. Under Order VII, Rule 11 proviso to Clause (d) the power given to the Court to extend the time for payment of the Court fee is for the cause of an exceptional nature and after recording the reasons. In the instant case, no cause of an exceptional nature has been put forth by the plaintiff and the Court below has not recorded any reasons. Inability to raise money is not a reason to exercise the discretion under Section 149 CPC by the Court below. Section 149 CPC has to be read together with Order VII, Rule 11 and the orders made by the Court below extending the time for payment of deficit Court fee from time to time are illegal, without any reasons and without any cause whatsoever.
6. For the aforesaid reasons the Civil Revision Petition is allowed and the orders of the Court below in extending the time for payment of the deficit Court fee from to time without assigning any reasons and without any cause whatsoever and in receiving the deficit Court fee are set aside and the consequential action of the Court in numbering the suit is set aside. There shall be no order as to costs.