Madras High Court
P.Kumar vs Sanjay Agarwal on 5 October, 2010
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.10.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.RP (NPD) NO.2811 OF 2009 P.Kumar ...Petitioner VS. 1.Sanjay Agarwal 2.Ashokkumar 3.M.Venkatesh 4.B.E.Prasad ...Respondents Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the order and decreetal order dated 30.04.2009 in I.A.No.74 of 2008 in O.S.No.91 of 2007 on the file of the Learned Principal District Judge, Krishnagiri. For Petitioner : Mr.V.R.Shanmuganathan For Respondents :Mr.V.Lakshminarayanan O R D E R
The Petitioner/Respondent/Plaintiff has filed this Civil Revision Petition as against the order dated 30.04.2009 in I.A.No.74 of 2008 in O.S.No.91 of 2007 on the file of the Principal District Court, Krishnagiri.
2.The trial court in I.A.No.74 of 2008 in O.S.No.91 of 2007 on 30.04.2009 has among other things held that 'the Revision Petitioner/Plaintiff neither paid the Court fee within the period of limitation nor filed Application under Section 149 of the Civil Procedure Code to extend time for payment of deficit Court Fee and opined that the defect of non filing of application under Section 149 of the Civil Procedure Code to extend the time of payment of deficit Court Fee cannot be cured' and resultantly, allowed the Interlocutory Application praying to reject the plaint under Order 7, Rule 11 of Civil Procedure Code without costs.
3.According to the Learned counsel for the Revision Petitioner/Plaintiff, the order of the trial court in I.A.No.74 of 2008 in O.S.No.91 of 2007 dated 30.04.2009 in allowing the Application praying to reject the plaint under Order 7, Rule 11 of Civil Procedure Code is not a correct one in the eye of law and as a matter of fact, the trial court ought to have disposed of suit on merits.
4.The Learned counsel for the Revision Petitioner/Plaintiff urges before this Court that the Revision Petitioner/Plaintiff filed O.S.No.91 of 2007 on the file of the trial court for the relief of specific performance of Sale Agreement dated 18.02.1998 which contains the last endorsement of payment on 02.04.2004 and as such, the period of limitation expires on 02.04.2007 and in reality, the suit has been filed on 30.03.2007 by affixing a Court fee of Rs.2,61,015/- instead of Rs.2,72,776/- i.e., with a deficit Court fee of Rs.11,761/- and the non payment of deficit Court fee of Rs.11,761/- is a clerical mistake and the plaint has been returned by the trial court on 11.04.2007 granting one month time for compliance of certain defects including the payment of deficit Court fee and later, the plaint has been represented on 17.12.2007 with original Sale Agreement along with a petition to condone the delay of 78 days in representing the suit and the same has been condoned and later, the same has been numbered and summons has been issued to the Defendants who entered appearance and projected Written Statement and subsequently, I.A.No.74 of 2008 has been filed under Order 7, Rule 11 praying to reject the plaint and I.A.74 of 2008 has been filed belatedly when the suit has been ripening for trial.
5.It is the submission of the Learned counsel for the Revision Petitioner that failure to file separate Application as per Section 149 of Civil Procedure Code for extension of time in paying Court fee will not apply the case of the plaint resulting in Court to reject the plaint and before the trial court, when the suit has been represented along with an Application under Section 148 read with Section 151 of Civil Procedure Code for condoning the delay in representation of plaint after complying with the Defendants and the said Application being allowed, the Court has exercised its discretion and condoned the delay in paying the deficit Court fee and has numbered the suit and therefore, the contra view taken by the trial court in allowing I.A.No.74 of 2008 and ordering rejection of plaint is not a legally sustainable order in the eye of law which needs to be rectified by this Court and therefore, prays for allowing the Civil Revision Petition to prevent an aberration of justice.
6.Conversely, it is the contention of the Learned counsel for the Respondents/Petitioners/Defendants 7 to 10 that the rejection of plaint order in I.A.74 of 2008 by the trial court is a deemed Decree and as such, the Civil Revision Petition under Article 227 of the Constitution will not lie.
7.It is the further contention of the Learned counsel for the Respondents that a plaint can be rejected even at the time of delivering Judgment and further, the trial court has come to the right conclusion in allowing the I.A.74 of 2008 filed by the Respondents in the main suit and ordered rejection of the plaint which is a correct one and therefore prays for dismissal of the Revision Petition.
8.The main contention put forward on the side of the Respondents is that a Revision under Article 227 of the Constitution of India will not lie as against the order passed by the trial court in I.A.74 of 2008 because the order of rejecting the plaint is a Decree and an appelable one as per Section 96 of Civil Procedure Code and therefore, the Revision is per se maintainable in law.
9.The Learned counsel for the Revision Petitioner/Plaintiff in support of the contention that the provisions of Order 7, Rule 11 of C.P.C. are not exhaustive cites the decision NESAMMAL AND ANOTHER V. EDWARD AND ANOTHER, 1998 (III) CTC 165, wherein it is held that "Provisions of Order 7, Rule 11 of Civil Procedure Code are not exhaustive, etc.," He also relies on the decision of the Hon'ble Supreme Court P.K.PALANISAMY V. N.ARUMUGHAM AND ANOTHER, 2009 (4) CTC 187, wherein it is held that "Once Application under Section 149 of Civil Procedure Code is allowed, Order 7, Rule 11(c) of Code will have no application and further more, payment of Court Fees is a matter between State and Suitor." He seeks in aid of the decision of the Hon'ble Supreme Court AJAY BANSAL V. ANUP MEHTA AND OTHERS, (2007) 2 SUPREME COURT CASES 275 at page 276, wherein it is held that "an Application under Article 227 against the Decree would not ordinarily be entertained, where an Appeal lies, etc.,"
10.He draws the attention of this Court to the decision of the Hon'ble Supreme Court SNEH GUPTA V. DEVI SARUP AND OTHERS, (2009) 6 SUPREME COURT CASES 194, at page 198, wherein it is held that "Interference under Article 227 of the Constitution is permissible if there exists an error apparent on the face of record or, if any other well known principle of judicial review is found to be applicable i.e., the findings arrived at in the impugned judgment are perverse and/or in arriving at the said findings, the Judge concerned failed and/or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor."
11.Apart from the above, the Learned counsel for the Revision Petitioner has relied on the following decisions:
(a) In GANESA NAICKER V. KOKILAMBAL AND 4 OTHERS, 2006(1) L.W. 677, at page 678, this Court has observed as follows:
"The scope of supervisory jurisdiction has been dealt with in various decisions. The power under Article 227 must be exercised with restraint and only for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority, especially when-
(i)the court or tribunal has assumed a jurisdiction which it does not have,
(ii)has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and
(iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction, and not for correcting mere errors. To interfere with the impugned order under Article 227, it is not enough for the petitioners to establish that the court might, on the same materials, have passed a different order. "It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong", to use the words in 1948 (1) All E.R.343 (Bellenden vs Satterthwaite) or when the order involves miscarriage of justice, that we can interfere."
(b) In E.KUMAR V. P.JOTHI AND 3 OTHERS, 2008 (2) CTC 280 at page 283, it is held thus:
"Finally, Article 227 of the Constitution of India confers upon the High Court a power of supervision over all judicial matters decided by any Court or Tribunal within the State and in a fit and proper case in which if the High Court exercises its power under Article 227 of the Constitution of India and the matter has been transferred on such orders from one jurisdiction of a Court to another and the Transferee Court has decided the matter one way or other, an aggrieved party cannot be heard to say that the Transferee Court has no jurisdiction to decide the matter."
(c) In A.SREEDEVI V. VICHARAPU RAMAKRISHNA GOWD, (2006) 1 M.L.J.116, at page 117, this Court has held that "It is the duty of the trial court to read the plaint, not formally, but on a meaningful way and on such reading it is manifestly vexatious and meritless in the sense of not disclosing a fair right to sue, it should exercise its power exercisable under O.7, Rule 11, C.P.C.
The provision of Civil Procedure Code shall apply subject to the provisions of the Family Court Act."
(d) In K.NATARAJAN V. P.K.RAJASEKARAN, (2003) 2 M.L.J.305 (DB) of this Court, it is held as below:
"The Court has got jurisdiction to allow a person, by whom the fee is payable to pay the whole or part, when it is found, he has not paid. In effect, Sec.149, C.P.C. is proviso to Sec.4 of Tamilnadu Court Fees and Suits Valuation Act, 1955."
and moreover, it is also observed at page 306 that "the discretion to be exercised by a Court of law is one of judicial one."
(e) In GOWRI AMMAL V. MURUGAN AND OTHERS, 2006(3) CTC 418, (DB), it is laid down that "Duty of Court is to administer justice and in such process rigours of procedural law will have to be loosened and substantive justice should be administered and not procedural justice and procedure is meant to facilitate administration of real justice and not to defeat the same."
(f) In VILLAGE CONNECTION, REP. BY ITS PARTNER, R.K.SOUNDHAR RAJAN V. PRAKASH TRANSPORT, CHENNAI, (2007) 1 MLJ 77 (DB), at page 78, this Court has observed and held as follows:
"Learned counsel appearing for the Respondent raised a preliminary objection to the effect that rejection of the plaint under Order 7, Rule 11 is deemed to be a decree as defined under Section 2(2) of the C.P.C., and, therefore, a regular appeal has to be filed on payment of regular Court-fee and as such the appeals are not maintainable without payment of proper Court-fee.
This preliminary objection raised by the respondent is not sustainable for the following reasons. The appeal filed can be treated as an appeal against the order as contemplated in the Original Side Rules. Since the order is passed on account of the application filed by Defendant No.1 and such application can be considered as incapable of being valued, the Court fee paid can be said to be appropriate.
The question relating to payment of Court-fee can be viewed from another angle. Even in appeals where Court-fee paid in not sufficient, the Court invariably grants time to the Appellant to pay the deficit Court-fee. The suit has been dismissed only on the legal ground relating to non-issuance of notice under Section 10 of the Carriers Act. Now that such question is decided in favour of the Appellant, obviously the matter has to be remanded to the trial court for consideration on merit in which event whatever Court-fee is paid or liable to be paid is to be refunded to the Appellant. Therefore, the question of sufficiency of the Court-fee paid raised by the Defendant recedes into background."
(g) In MANNAN LAL V. MST.CHHOTAKA BIBI (DEAD), BY LRS. B.SHARDA SHANKAR AND OTHERS, 1970 (1) SUPREME COURT CASES 769, at page 770, it is held as follows:
"That there can be no doubt that Section 4 of the Court-Fees Act is not the last word on the subject and the Court must consider the provisions of both the Act and the Code to harmonise the two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Court-Fees Act by allowing the deficiency to be made good within a period of time fixed by it. If the deficiency is made good no possible objection can be raised on the ground of the bar of limitation; the memorandum of appeal must be treated as one filed within the period fixed by the Limitation Act subject to any express provision to the contrary in that Act and the appeal must be treated as pending from the date when the memorandum of appeal must be treated as pending from the date when the memorandum of appeal was presented in Court. In our view, it must be treated as pending from the date of presentation not only for the purpose of sufficiency as to Court-fee under Section 149 of the Code."
(h) In K.DURAISWAMY V. S.N.MYLSWAMY, this Court in C.R.P. NPD NO.2107 OF 2008 ON 30.09.2009 has held as follows:
"Though the Revision Petitioner/Plaintiff has failed to pay the deficit Court fee within the stipulated time, however represented the plaint on 25.05.2003 and it was entertained and taken up on file on 26.06.2003 along with deficit Court fee of Rs.55,000/-. Thereafter, the suit was entertained and the Defendant entered appearance and filed his Written Statement. The trial court framed issues in the suit and the trial is in a part heard stage. At this juncture, it may not be sound and reasonable to dismiss the suit.
In the light of the ratio laid down in the above said decision and factual situations, this Court is of the opinion that the impugned order passed by the trial court is liable to be set aside. Accordingly, the Civil Revision Petition is allowed and the impugned order in I.A.No.155 of 2006 and in O.S.No.311 of 2005 on the file of the Court of Additional District Judge, Coimbatore is set aside and the suit stands restored to file, etc.,."
12. However, the Learned counsel for the Respondents cites the decision of this Court S.ABDULKANI & OTHERS V RAHMANIAPURAM NAINA MOHAMMED & ANOTHER, CDJ LAW JOURNAL 2006 MHC 260, wherein this Court has among other things held that 'the impugned order/Decree, dismissing the suit under Order 7 Rule 11"(d) of C.P.C. is a original Decree (as per Section 2(2) C.P.C.) from which only an Appeal lies under Section 96 C.P.c. in the First Appellate Court-when such efficacious and alternative remedy is available, the Revision Petition filed under Article 227 of the Constitution is not maintainable." He also places strong reliance on the decision ABDUL RAHIM V. PANDIAN & OTHERS, CDJ LAW JOURNAL 2004 MHC 1581, wherein it is held that 'The order of rejection of plaint has determined the rights of parties conclusively. Such rejection of the plaint is within the meaning of decree under Section 2, C.P.C. and appeal alone lies from the original decree. Inasmuch as the appeal alone is maintainable against the decree rejecting the plaint, the revision filed against the order in I.A.No.814/2002 is not maintainable and against such an order, only appeal will lie."
13. In S.R.No.24659 of 2007 in unnumbered I.A. /2007 in unnumbered O.S., on behalf of the Revision Petitioner/Plaintiff, an Application has been filed praying to condone the delay of 78 days in representing the suit and one such written made by the office of the trial court is for production of original Agreement Deed and it transpires from the records that the Learned trial Judge has excused the delay in representing the suit on 20.12.2007.
14.In another unnumbered Application of 2007 in unnumbered suit filed on behalf of the Revision Petitioner/Plaintiff praying to condone the delay of 105 days in representing the suit in SR No.15770, the trial court has excused the delay and allowed the application on 20.12.2007.
15. Moreover, the trial court allowed I.A.No. /2007 in O.S.91 of 2007 filed on behalf of the Revision Petitioner to take the plaint and injunction petition on file out of turn and the same has been ordered to be filed by the trial court on 02.01.2008.
16. The Learned Principal Judge, Krishnagiri has returned the plaint filed by the Revision Petitioner/Plaintiff citing 1 to 11 defects and the first defect being payment of deficit Court fee and the defects have been complied with by the Learned counsel for the Revision Petitioner/Plaintiff and one such compliance is payment of deficit Court fee. Even when the plaint has been returned for substituting the certified copy of Agreement of sale in O.S. on the file of the District Munsif Court, Hosur and filed the original Agreement with the present suit, the trial court has granted one month time on 30.08.2007 and returned the plaint which has been represented on the side of the Revision Petitioner/Plaintiff by means of submission of original Agreement. At the time of presentation of the plaint, the Revision Petitioner/Plaintiff has paid the Court fee of Rs.2,61,015/- as per the endorsement made by the concerned office of the trial court. The correct court fee to be paid in the plaint is Rs.2,72,776/-.
17.It is the contention of the Learned counsel for the Revision Petitioner/Plaintiff that when the plaint has been returned on 11.04.2007 giving one month time for compliance of certain mistakes including the one of deposit of deficit Court Fees and when the plaint has been represented on 24.08.2007, the deficit Court Fee has been paid and later again on 30.08.1997, when the plaint has been returned for production of original Sale Agreement and represented on 17.12.2007 with original Agreement with the petition to condone the delay of 78 days and the same being allowed by the trial court in SR 27659 in unnumbered suit in unnumbered O.S. Of 2007 on 20.10.2007.
18.Moreover, when the trial court has numbered the O.S.91 of 2007 and on 20.12.2007 and has issued the summons to the Defendants and given the first hearing date as 31.01.2008, by no stretch of imagination, the trial court can reject the plaint in the eye of law and the contrary view taken by the trial court that the defect of non filing of the Application under Section 149 of C.P.C. to extend the time for payment of deficit Court fee cannot be cured as patently erroneous in the eye of law.
19. At this stage, this Court aptly points out that Section 149 of the Civil Procedure Code enjoins that where the whole or any part of the fee prescribed has not been paid, the Court can, in its discretion at any stage, allow the person by whom such fee is payable to the whole or part 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 the said fee has been paid in the first instance.
20. In reality, Section 149 of Civil Procedure Code is an exception to the Rule, that the suit ought to be filed with requisite Court fee.
21.Added further, this Court worth recalls the decision ANAR SINGH V.CHATURBHUJ, AIR 1957 RAJASTHAN 367, wherein it is inter alia held that "When a party pays deficit Court fees beyond the time fixed and has not asked the Court to extend the time, but the Court nevertheless admits the appeal and receives the fee, the only reasonable interpretation is that the Court has, implicitly, though not explicitly extended the time within the meaning of Section 149 even though the period of limitation has expired."
22. Also, in JAGAT RAM V. MISAR KHARAITI RAM, AIR 1938 LAHORE 361, it is held that "the discretion conferred on the Court by Section 149 is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive malafides or reasons of a similar kind. The question of bonafides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act."
23. In KATHYEE COTTON MILLS LTD., V. PADMANABHA PILLAI, AIR 1958 KERALA 88, wherein it is inter alia held that "there is no conflict or exclusiveness between Section 148 and 149 of C.P.C. and that a party is not, as of right, is entitled to under Section 148 to get an of an enlargement of a period fixed or granted by the Court and that is a matter entirely within the discretion of the Court though no doubt some discretion should be exercised judicially and no capriciously or arbitrally.' According to the Learned counsel for the Respondents in Section 149 of C.P.C. the expression at any stage" is used and that the terms of 'time' is used in Section 148 of C.P.C. Further, it is the contention of the Learned counsel for the Respondents that even a time fixed under Clause (c) of Rule 11 of Order 7 will be a period fixed under Section 148 of C.P.C. and as such, the Court will have power to extend, if it otherwise deems fit to do so."
24. Most importantly, it is necessary for this Court to pertinently point out the decision GARAPATI VENKANNA V. MULLAPUDI ATCHUTARAMANNA, (1938) MLJ 610 AT 611, wherein it is held hereunder:
"but once time is granted to a party for payment of the deficit Court-fee it is no longer open to the Plaintiff to demand as a matter of right that the time should be extended and where time has in fact been extended it may be presumed that the Court in fact exercised its discretion and it is necessary to provide by a rule made by the High Court that where the order regarding payment of deficit Court-fee had the effect of overriding limitation, the Court shall not make it without notice to the party to be adversely affected by it."
25.It is to be noted that Section 96/100 of Civil Procedure Code does not prescribe as to who can file an Appeal. A person having legal grievances can file an Appeal in the eye of law.
26.If a plaint is rejected under Order 7 Rule 11(c) of C.P.C. for non payment of deficit Court fee, a remedy of an Appeal or Review is permissible, but not a restoration Application to be filed under Order 9, Rule 9 or under Section 151 of the Civil Procedure Code.
27.When an appreciation of the matter by a Lower Court suffers from illegality or perversity then the High Court can intervene in the matter and exercise its discretionary powers under Article 227. It is true that Article 227 of the Constitution of India cannot be claimed as a matter of right. However, the said power under Article 227 of the Constitution of India can be exercised by the Hon'ble High Court to correct an error of jurisdiction or an error of law committed by the trial Court, though generally a remedy of Review or Appeal is permissible when a plaint is rejected as per Order 7, Rule 11 of Civil Procedure Code.
28.Further, to examine the regularity of proceedings or correctness, legality or proprietary of any decision or order, the High Court can exercise its discretionary power under Article 227 of the Constitution of India.
29.Be that as it may, the terms "at any stage" in Section 149 of Civil Procedure Code adumbrates that the deficiencies can be made good even after the expiry of the limitation period in regard to the filing of the suit or Appeal and further, the discretion can be exercised even in the case of a plaint without any Court fee. In this connection, it is not out of place for this Court to point out that the discretion showered on a Court of law as per Section 149 of C.P.C. is over and above the application under Order 7, Rule 11 of C.P.C. To put it precisely Order 7, Rule 11 of C.P.C. is not an enabling provision, but only a disabling one and the proper Section in and by which time may be granted for payment of Court fee is only Section 149.
30.That apart, an application to receive the Court fee is not a mandatory one and the same is only optional, as opined by this Court and even in the absence of any application, the trial court is quite competent and well within its bound to accept or deposit court fee in a prudent, sensible and equitable manner, but in the instant case on hand, the observation of the trial court that 'the Revision Petitioner/Plaintiff neither paid the Court fee within the period of limitation filed the Application under Section 149 of C.P.C. to extend the time for payment of deficit Court fee and consequently, rejecting the plaint by allowing I.A.74 of 2008, etc.', are not correct in the eye of law.
31.This Court succinctly points out that when the Revision Petitioner/Plaintiff as on 24.08.2007 has represented the Plaint by complying with certain defects and also paid the deficit court fee, then such act cannot be found fault with by the Respondents raising a plea there must be separate application under Section 149 of C.P.C. to extend the time for payment of deficit Court fee is not a correct and tenable one and since the order of the trial court dated 30.04.2009 is not in conformity of the well settled legal position that an application to receive the deficit Court fee is not a mandatory one since the same being an optional one, the non filing of an application under Section 149 of Civil Procedure Code is not a fatal one and hence, this Court necessarily interferes with the said order and accordingly, sets aside the same by allowing the Civil Revision Petition, by exercising its supervisory and parental powers under Article 227 of the Constitution of India which has to be sparingly used and since it is a fit case for using the said power, this Court is exercising the same in furtherance of substantial cause of justice.
32. In the result, the Civil Revision petition is allowed. Consequently, the order in I.A.No.74 of 2008 in O.S.No.91 of 2007 dated 30.04.2009 passed by the Learned Principal District Judge, Krishnagiri is set aside. No costs.
vri To The Principal District Judge, Krishnagiri