Indian Kanoon - Search engine for Indian Law

An agreement holder, who is aware that he has to pay a sum of Rs.17,96,693/- as court fees on his plaint seeking specific performance, has paid just Rs.300/- along with the plaint; re-presented the same with a delay of 1090 days, which was condoned by a court without jurisdiction; and paid the deficit court fees after three years. The defendant questions the legality of the proceedings by moving these civil revision petitions under Article 227 of the Constitution of India.

2. The suit was filed by the first respondent herein on 27.3.2001. On that date, the suit agreement was not filed along with the plaint and it was returned for that purpose. In paragraph 6 of the plaint, it is stated, "... the plaintiff is paying a sum of Rs.17,96,693/-", but only Rs.300/- was paid along with the plaint. The plaint was returned on 28.3.2001 to explain how the suit is maintainable without the sale agreement. Thereafter, the plaint was re-presented on 7.4.2004 with a delay of 1090 days. In the affidavit filed in support of the petition for condonation of the delay, the first respondent has stated that he did not know that the plaint had been returned for filing the suit sale agreement. The first respondent had also filed a suit, O.S. No.231 of 2001 for permanent injunction restraining the petitioners herein from alienating the suit property. That suit was taken on file and summons were served. The first respondent also pleads that the petitioners contacted him and agreed to complete the sale transaction and requested him not to precipitate the matter. Therefore, he waited for an amicable settlement until 27.3.2001, but did not want to take the risk of allowing the suit to become time-barred without filing the same in time and therefore, he took a decision to file the suit in time, paying the court fees, but at the same time expected the petitioners to complete the transaction by paying the sale consideration. He was anxious that in the event of the petitioners amicably settling the matter, he should not take the risk of spending Rs.18,23,150/75 as court fees. According to the first respondent, he was having the original sale agreement with him. But he apprehended that filing of the original agreement may not be safe and hence he had filed copies thereof, but on account of passage of time, he had forgotten about the same. In the first week of March 2004, when he contacted his counsel, he came to know that the plaint papers had not been re-presented for want of the original sale agreement. He traced the sale agreement from papers which were unconnected with the above suit. He obtained change of vakalat on 17.3.2004 and entrusted the matter to the present counsel. Since the time for re-presentation had expired on 11.4.2001 and the plaint had not been re-presented in time, he filed the application for condonation of the delay of 1090 days in re-presenting the plaint, to enable him to prosecute the suit. By this time, the Tamil Nadu Civil Courts Amendment Act 2003 (Act No.1 of 2004) had come into force. Therefore, the Subordinate Judge, Poonamallee no longer had the pecuniary jurisdiction to try the suit. However, the learned Subordinate Judge condoned the delay on 8.4.2004 and returned the plaint for re-presentation before the competent court, giving the first respondent one month's time for the same. The plaint was re-submitted to the District Court and the District Court returned the plaint with the endorsement "deficit court fee to be paid" on 22.4.2004, giving the first respondent one month's time to pay the same. On 5.5.2004, the deficit court fee was paid and the suit was taken on file as O.S. No.596 of 2004.

5. The learned senior counsel appearing for the respondents would submit that until 22.4.2004, the first respondent was not called upon to pay the deficit court fee and under Order VII, Rule 11, C.P.C. the court can reject the plaint only if 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; and in this case, admittedly the court fee was paid within the time granted by the court and therefore, once the court fees has been paid, it would date back to the date of presentation of the plaint and the plaint is deemed to have been filed on the date of its presentation, duly stamped. Learned senior counsel submitted that for invoking the power for making up the deficiency of court fees, Section 149, C.P.C. does not require any application, and the court may in its discretion allow the person to pay the deficit court fee at any stage and on such payment, the document shall have the same force and effect as if such fee has been paid in the first instance. The learned senior counsel submitted, therefore, that the learned Subordinate Judge was quite right in condoning the delay in re-presentation before returning the plaint to be re-submitted before the appropriate court, since for the limited purpose of receiving the plaint, he continued to retain the jurisdiction because otherwise, the litigant would have nowhere to re-present the plaint. The learned senior counsel further submitted that the judgments referred with regard to deficit court fees on appeals may not be applicable to the present case because this case deals with deficit court fee on plaint.

Only on the amendment being allowed, the jurisdiction which the Court initially had gets lost. Only after that contingency happens, the question of returning the plaint for presentation to proper court would arise. If the amendment sought for is to be disallowed, certainly the plaint as it was presented has got to be prosecuted. The other possibility of the court to which the plaint alone with the amendment application is to be transferred, rejecting the amendment application cannot be ruled out, and in such a case, the plaintiff will be in a quandary. That should not be the result of the exercise of powers by the Courts on the question of amendment. Hence the court which originally entertained the plaint can certainly decide the question of amendment even though by allowing the amendment, it may lose its jurisdiction, and as a result of it, the plaint may have to be returned for presentation to the proper court, having jurisdiction as per the amended plaint."

21. The learned Subordinate Judge who condoned the delay in re-presenting the plaint was not right in doing so and the decision in 1988 (1) L.W. 176 (supra) does not help the respondents. There, the plaint was amended and on amendment, the jurisdiction which the court initially had was taken away from it and only after the amendment was allowed, the question of returning the plaint for presentation to the appropriate court would arise. As observed by the learned Judge in that case, if the amendment was disallowed, then that court continued to have the jurisdiction. Therefore, it was held that the court which originally entertained the plaint can certainly decide the question of amendment even though by allowing the amendment, it may lose its jurisdiction. That does not apply to the present case. The court which was asked to exercise the judicial discretion for condonation of delay in re-presentation had no jurisdiction to exercise the discretion. The court ought to have returned the plaint stating that in view of the Tamil Nadu Civil Courts Amendment Act 2003, it could not receive the plaint and it should be presented before the appropriate court. Thereupon, the plaintiff could have preferred an application before the appropriate court which had the jurisdiction and which could have decided the question. Here, discretion to condone the delay was exercised by a court which did not have the jurisdiction and therefore, the order condoning the delay is clearly erroneous and without jurisdiction. 2007 (3) C.T.C. 144 is squarely on the point. Further, the manner in which the court dealt with an application to condone the delay of 1090 days in re-presentation of the plaint is unsatisfactory. The docket merely says "Delay Condoned. In 2003 (2) M.L.J. 305 (supra), the learned Judges say, "In the other petition (i.e.,) to excuse the delay in paying deficit Court-fee, the learned Judge passed the order in two wors as 'delay excused'. On the face of it, it is clear that the learned Judge has not exercised his discretion, but passed the order for mere asking. It is unfortunate the learned Judge has not even looked into the affidavit filed in support of the petition to condone the delay in paying deficit Court-fee. In the said affidavit, the plaintiff has stated that he has produced the original vouchers in the criminal proceedings and hence the delay occurred. We have already pointed out, along with the plaint the plaintiff produced only xerox copy of the voucher. Certainly he would have handed over the plaint or xerox copy of the letter dated 19.4.1982 in the criminal Court. That being so, nothing prevented the plaintiff to re-present the plaint within the time allowed. Also to be noted is, the plaintiff has been a Financier and it is not his case that at any point of time he was in need of money. It is crystal clear from the facts and circumstances that plaintiff thought by harassing the defendant by resorting to criminal proceeding, he can extract the money that he desired and in the meantime he never wanted to spend the amount by paying Court-fee. Thus, there is utter lack of bona fides on the part of the plaintiff. He seems to have taken the Court just for a ride and it can be well said that he abused the process of law."