The revision petitioner filed appeal against the judgment and decree passed in O.S.85 of 1996 on the file of the District Munsif, Thuraiyur. The appeal was filed with a delay of 15 days and while filing the appeal proper Court fee was not paid. Therefore, an application was filed by the revision petitioner for extension of time for payment of court fee and initially 2 months time was granted and on expiry of that period another application was filed and in that application further two months time was granted. After the expiry of the second period, the revision petitioner without applying for extension of time, paid the Court fee on 10.03.2008 and on the same day I.A.No.97 of 2008 in A.S.SR.No.667 of 2008 was taken on file to condone the delay. That application was dismissed by the lower Court on the ground that the revision petitioner has not obtained extension of time for payment of Court fee after the Court has extended the time twice. It was stated by the petitioner that he was suffering from jaundice and he has no knowledge about the filing of the appeal. As the Court fee was not paid within the time extended by the Court, the lower Court refused to condone the delay and dismissed the application. Aggrieved by the same, the revision petitioner/appellant filed the revision petition.
2.Mr.Kadarkarai, learned counsel for the revision petitioner submitted that initially the appeal was filed with a delay of 15 days and at the time of filing of appeal proper Court fee was not paid and extension was sought for and was granted and subsequently the appellant paid the Court 10.03.2008 and that was accepted by the lower Court and thereafter the application to condone the delay was numbered and hence, after accepting the Court fee, the Court should not have rejected the application to condone the delay on the ground that proper reason was not stated by the petitioner.
3.Mr.J.Ashok, learned counsel appearing for the respondent submitted that after getting extension of time twice, the revision petitioner has not applied for extension of time for payment of proper Court fee and without obtaining the extension of time for payment of Court fees, he paid the Court fee on 10.03.2008 and therefore the appeal was presented defectively and hence the delay has to be counted from the date of decree till the date on which proper Court was paid and if so calculated it will be more than 390 days and for that no proper explanation was given by the petitioner. Hence, the lower Court has rightly rejected the petition filed by the petitioner to condone the delay.
4.I have given my anxious consideration to the submissions made by both the counsel.
5.It is not disputed that under Section 149 of C.P.C., if Court fee was not paid in time, the Court may, at any stage, allow the person to pay the Court fee and upon such payment it shall have same force and effect as if such fee had been paid in the first instance. Therefore, as rightly contended by the learned counsel for the respondent, the Court has got power to extend time for payment of Court fee and in this case time was originally extended by two months on the petition filed on 27.04.2007 and thereafter the time was extended by another two months and hence, the Court has granted time till 26.06.2007 for the payment of deficit Court fee and thereafter no application was filed but the Court fee was paid only on 10.03.2008. Therefore, the Court fee paid on 10.03.2008 cannot be taken as the proper payment within the ambit of Section 149 of C.P.C. and hence the limitation has to be calculated from the date of judgment, according to him. Even assuming that the limitation can start from the date of judgment, the delay in this case is only 390 days. Further, the delay of 390 days in filing the appeal is only in payment of proper Court fee and when the Court has accepted Court fee even in the absence of any application, it can be presumed that the Court has condoned the delay in payment of Court fee.
6.Further, even assuming that there is a delay of 390 days, having regard to the fact that the delay was caused by the non-payment of proper Court fee and by not filing the appeal in time and the appeal was filed only with a delay of 15 days, in the interest of justice, the delay can be condoned and the lower Court has not properly exercised its jurisdiction.
7.Accordingly, the Civil Revision Petition is allowed. No costs.
sj TO The Principal District Judge, Tiruchirappalli.