In view of the common issues involved in the above revisions, they have been taken up for hearing together.
2.The brief facts in C.R.P.(MD)No.1489 of 2007 are as follows:-
A suit was filed in O.S.No.253 of 2000 by the respondent for specific performance on the file of Sub Court, Srivilliputhur. At the time of filing the suit, a part of the Court fee has not been paid and thereafter, an application was filed in I.A.No.1353 of 2000, to condone the delay in paying the deficit court-fee. The said application was allowed and the payment has been made by the respondent/plaintiff. Contending that the said amount has been paid beyond the period of limitation, an application was filed in I.A.No.367/2006, to dismiss the suit as one barred by limitation at the time of the trial.
3.The brief facts in C.R.P.No.158 of 2008 are as follows:-
A suit was filed by the respondent in unnumbered suit on 14.09.2007, on the file of Sub Court, Aruppukottai, seeking the relief of recovery of money. Since there was a deficiency in the Court fee, an application was filed in I.A.No.60 of 2007, seeking permission to pay the deficit Court fee of Rs.7,947/- under Section 149 r/w 150 of the Code of Civil Procedure. In the said application notice has been ordered and after hearing both sides, the Court below has allowed the said application. Challenging the said order, the above revision has been filed, contending that the respondent/plaintiff has not paid the Court fee within the period of limitation.
4.The common issue to be decided in both these revisions is that can the Court exercise the power under Section 149 of the Code of Civil Procedure, in extending the time for the payment of Court fee after the period of limitation.
5.Heard the learned counsel for the petitioners as well as the learned counsel for the respondents.
6.Mr.M.S.Balasubramanian Iyer, has also assisted the Court, since there are conflicting judgments over the issue raised and also in view of the fact that the trial Courts are facing the problems while granting permission towards the payment of deficit Court fee.
7. Before proceeding with the case and in order to appreciate the controversies involved, the provision of Sections 148 and 149 of the Code of Civil Procedure will have to be looked into. They are extracted hereunder:-
"Sec.148. Enlargement of time- where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period, [not exceeding thirty days in total] even though the period originally fixed or granted may have expired."
148-A ...
"149. Power to make up deficiency of Court-fees - Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fee has not been paid, the Court, may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, 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 such fee had been paid in the first instance."
8.A perusal of Section 148 of C.P.C. would show that in a case where, a period is fixed or granted by the Court for doing any act, the Court may in its discretion from time to time enlarge such period, even though the period originally fixed may have expired.
9.Interpretation of Section 149 of the Code of Civil Procedure:-
Section 149 of the Code of Civil Procedure provides that where the whole or any part of any fee prescribed for any document relating to court-fee has not been paid then the Court, may, in its discretion, pass such orders pay the same. The words "whole or any part of any fee" would therefore mean that even if the plaint is presented without payment of any Court fee, the power under Section 149 of the Code of Civil Procedure can be exercised. Therefore, the power of the Court which invokes Section 149 of the Code of Civil Procedure is very wide.
10.Secondly, the word 'document' mentioned in the said Section would include any document. The Section itself makes it clear that 'any document' for which fees prescribed relating to Court fee. Therefore, the said definition of 'any document' would also include a plaint. Hence, the power under Section 149 of the Code of Civil Procedure, will have to be exercised while allowing the payment of deficit Court fee.
11.The words "the Court, may, in its discretion, at any stage", would mean that the discretion is very wide. Such discretion can only be exercised in favour of the litigant, who comes to the Court ventilating his grievance. Therefore, while exercising such discretion, the Court will have to exercise the same in favour of the litigant in the normal circumstances without adhering to technicalities. Similarly, the word 'may' as it occurs in Section 149 of C.P.C., will have to be seen as 'shall', since Section 149 speaks about the power of the Court to make up the deficiency of the court-fee. Importance will have to be given to the words "at any stage". This would only mean that the concerned court shall have to exercise the power under Section 149 of C.P.C. at any stage of the suit if it comes to its knowledge that the court-fee paid is insufficient.
12. A further reading of Section 149 of the Code of Civil Procedure also clearly indicates that once a Court exercises it discretion in favour of a party under Section 149 of C.P.C., then the same shall have the same force and effect as if such fee had been paid in the first instance. In other words, once an order is passed under Section 149, and the same is complied with by a party concerned, then the order will have the retrospective effect starting from the date of the presentation of the plaint. Therefore, a reading of the above said Section would clearly show that the power exercised under Section 149 of C.P.C., is procedural in nature and the discretion is rather wide for the Court while allowing the application. A further reading of the said Section would show that the said power under Section 149 of C.P.C., is an inherent power given to the Court in directing a party to make the deficit court-fee. Duty is cast upon the Court to consider, if the document presented to the Court is affixed with proper court-fee. Hence, a reading of the above said Section shows that the concerned court can and shall direct the party to make the payment of deficit court-fee even without an application seeking permission of the Court to make the said payment.
13.In view of the above said position, it is neither necessary for a party to make an application for the payment of deficit court-fee and when the application is filed under Section 151 of C.P.C., the same is deemed to have been filed under Section 149 of C.P.C., seeking invocation of the power of the Court under Section 149 of C.P.C. In other words, the application filed under Section 151 of C.P.C., would only amount to warranting the Court to exercise the power under Section 149 of C.P.C. Therefore, in view of the specific provisions contained in Section 149 of C.P.C., stating that an order permitting the payment of court-fee would relate backs to the presentation of the plaint, the question of limitation would not arise for consideration. The question of limitation would come when the plaint is presented after the period of limitation as prescribed by law. Inasmuch as the power exercised under Section 149 of C.P.C., is procedural in nature and also in view of the fact that an order allowing the application providing for payment of Court fee would relate backs to the date of the plaint the question of limitation does not arise.
14. In this connection it is useful to refer Order VII, Rule 11 of the Code of Civil Procedure.
"11.Rejection of Plaint - The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c)Where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped, and the plaintiff does not make good the deficiency withing the time, if any, granted by the Court".
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filled in duplicate.
(f) where the plaintiff fails to comply with the provisions of rule 9. [Provided that the time fixed by the Court fee for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff].
15. A perusal of the order VII, Rule 11 "(b)" would show that in a case, where the relief claimed is undervalued, the same will have to be corrected by the plaintiff "on being required" by the Court. When the plaintiff fails to comply with the same within a time given by the Court, thereafter only, the power under Order VII, Rule 11 of C.P.C. could be involved. Similarly, Oder 7, Rule 11 "C" stipulates that in a case where the relief claimed is property valued but the plaint is insufficiently stamped then the deficiency will have to be made good. The said provision is also makes it clear that the deficiency will have to be made good within a time granted by the Court. Hence, the above said provision shows that the Court has to be given time for payment of deficit Court fee.
16.Order VII, Rule 11 proviso speaks about the consequences that would follow when a direction given by the Court regarding the payment of Court-fee is not complied with. Under the said proviso, the Court shall not extend the time unless it is specified for the reasons to be recorded that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or paying the required stamp duty within a time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. Therefore, as per the said proviso, extension of time is subject to the satisfaction of the Court and while extending the time, the Court has to record the reasons that the plaintiff was prevented for the reasons stated in the said proviso. The Court can also extend the time taking into consideration of the grave justice that would be caused to the plaintiff.
17.On a consideration of the above said provision, this Court is of the opinion that the said provision made under Order VII, Rule 11, will have to be read in the light of Section 149 of C.P.C. Therefore, this Court is of the view that the question of limitation would not arise when the Court exercises the power under Section 149 of CPC. Unfortunately, the said provision has not been brought to the knowledge of the Hon'ble High Court in the earlier occasions.
18.In the judgment reported in Gavaranga Sahu Vs. Botokbishna Patro and others ( 1909 (32) ILR Mad 305) (FB), the Full Bench of this Court, has held that in a case where the deficit Court fee has been paid after the period of limitation with a permission of the Court, the suit cannot be considered as a one filed beyond the period of limitation.
19.In the judgment in Basavayya Vs. Venkatappayya reported in (51 MLJ
90), this Court has held that an order accepting payment of deficit Court fee without an explicit order extending the time would amount to payment of the Court fee at the time of the original presentation.
20.In the judgment in Venugopal Pillai Vs. Thirugnana Valliammal reported in (1940 (2) MLJ 487), the Division Bench of this Court has held that if the deficit Court fee is paid after the period of limitation, the same would date back to the date of its initial presentation.
21.However, in the judgments in Natarajan Vs. Rajasekaran (2003 (3) L.W. 803): (2003 (2) MLJ 305), followed by Arjunaraja Vs. P.Vasantha (2005 (5) CTC 401), Subramaniyam Vs. A.Nawab John and others (2007 (1) MLJ 667), Gopalasamy Vs. C.Senpagam (2007 (5) CTC 283), K.Kalisamy and another Vs. Mrs.R.Gowri (2007-3-L.W.850), this Court has held that the deficit Court fee will have to be paid within the period of limitation, the application made under Section 151 of C.P.C. will not be sufficient, for seeking the payment of Court fee and notice will have to be issued to the respondent before deciding the issue after the first time. In this connection it is to be noted that in the subsequent judgment reported in 2009 3MLJ 760 (A.Gurunathan Vs. T.Muthulakshmi), the High Court has taken a view that the exercise of power under Section 149 is only a procedural and even without an application under Section 149 of C.P.C., time can be extended.
22.In the judgment in Natarajan, K. Vs. P.K. Rajasekaran reported in (2003 (3) L.W 803) and S.V.Arjunjaraja Vs. P.Vasantha reported in (2005 (5) CTC 401), the judgment of the Full Bench of this Court in (1909 (32) ILR Mad 305) (FB) has been referred to, but the same has not been specifically over ruled. Inasmuch as the judgment of the Full Bench having not overruled, this Court is of the opinion that the judgment of the Full Bench will have to be followed. In the judgment reported in (2008 (2) CTC 24)(FB) Swarnavalliammal Vs. Government of Tamil Nadu, it has been held that a judgment delivered by the Full Bench is binding on all our Courts including the Division Bench and the Single Judge.
23.In the judgment in A.Gurunathan Vs. J.Muthulakshmi reported in (2009 (3) MLJ 760) it has been held as follows:-
"26. It is to be pointed out that if a litigant seeks enlargement of time on the basis that for some reasons,he can perform the act which he is required to fulfill within the time determined by the Court, it is for him to move an application under Section 148 of C.P.C. and the convenience of the Court that the interest of justice will require extension of time whether perspectively or retroactively under Section 148 of C.P.C. itself. Moreover, one is not obliged to file such an application in all cases. In this connection, in the decision in Mohd.Yosuf Vs. Bharat Singh AIR 1999 Raj.185, it is held that 'where the omission on the part of the party is trivial and the mistake committed by him is not a serious nature and does not adversely affect the rights of the parties, the Court may itself extend the time under Section 148 of C.P.C. so that the technical defects may be removed and the hearing of the case may proceed in accordance with law. Earlier, this power was without any restriction but now, after the Code of Civil Procedure (Amendment) Act, 1999, with effect from 1.7.2002, this power has been restricted for enlarging the period upto 30 days only. However, the upper time limit determined under Section 148 of C.P.C. cannot take away the inherent powers of the Court to pass orders as may be necessary for the interest of justice or to prevent abuse process of Court. The rigid operative play of Section 148 of C.P.C will lead absurdity. Therefore, Section 151 of C.P.C has to be allowed. But the enlargement of time prayed for payment of Court fee may not be granted under Section 148 of C.P.C. because Section 149 of C.P.C. deals with the power of the Court to permit payment of Court fee at any stage as per decision of in the matter of Goods of Late Ravinder Kumar AIR 2004 ALL 46.
27. As a matter of fact, Section 149 of C.P.C. specifies 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 pay 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 said fee had been paid in the first instance. In Hukma Vs. Manga AIR 2003 (P&H) 287 it is held that 'Section 148 of C.P.C in terms allows extension of time even though the original period has expired and Section 149 of C.P.C. is equally liberal. No wonder the payment of deficit Court fee relates back to the date of filing of the plaint. The words "at any stage" in Section 149 of C.P.C. specify that deficiency can be made good even after the period of limitation for filing of the suit or appear has expired. The discretion can be exercised even in the case of a plaint without any Court fee in the considered opinion of this court. Indeed, Section 149 of C.P.C. is the exception to the Rule, the suit should be filed with requisite Court fee. Moreover, the discretion is to be considered as defined in General Clauses Act and not under Limitation Act as per the decision in Custodian of Evacuee property Vs. Rameshwar Dayal AIR 1968 Delhi 183. Added further it is relevant to state that the question of limitation does not arise in respect of payment of deficit Court fee as per decision in 2003 (6) ALD 682 at 686 (AP)."
24.The Hon'ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu, Vs. Union of India reported in (2005(6) SCC 344) has held that the time limit fixed under Section 148 of C.P.C. cannot take away the inherent powers of the Court to pass orders for ends of justice. The Supreme Court was pleased to hold that the discretion under Section 149 C.P.C., has to be allowed to operate fully. The Hon'ble Supreme Court has further observed that even if the maximum period of 30 days, as provided under Section 148 of C.P.C. gets expired, extension can be permitted when the same could not be performed within 30 days for the reasons beyond the control of the party.
25.Similarly, in the judgment in Gowri Ammal Vs. Murugan and others reported in (2006 (3) CTC 418), the Division Bench of this Court has held that Sections 148, 149 and 151 should be read conjointly and not in isolation. It is further observed in the said case that the duty of the Court is to administer the justice and in such process, the rigours of the procedural law will have to be loosened and substantive justice should be administered. The Division Bench has further observed that the procedure law is meant to facilitate the administration of real justice and not to defeat the same. In this connection, it has to be borne in mind that the procedural law is a hand made of justice and the Court must always be anxious to do justice and prevent victories by way of technical withholds.
26.The mere misquoting or invoking wrong provision of law as discussed earlier cannot prevent the party from getting justice. In the judgment in S.Rajeswari Vs. S.N.Kulasekaran and others reported in (2006 (3) CTC 171) the Hon'ble Supreme Court has held that mere quoting of wrong provision in difference will not prevent the party from getting the relief sought for. Similarly, the Division Bench of this Court in the judgment reported in (2009 (3) CTC 97) (D.Sivakumar and another Vs. The Government of Tamil Nadu, has held that wrong quoting of the provision of law would not vitiate the proceedings.
27.As held earlier, the provision of Section 149 is clear and unambiguous. It is well settled principle in law that the Court cannot read anything into statutory provision or a stipulated condition which is plain and unambiguous. Therefore, the intention of the legislature is primarily to be gathered from the language used, which means the attention should be paid to what has been said as also what has not been said.
28.Hence, the rule of interpretation did not permit the Court to interpret unless the provision as it stand is meaningless or of doubtful meaning. It is also well settled principle of law that while interpreting of provision, the Court can only interpret the law and cannot legislate. In this connection, it is useful to refer the judgment of the Supreme Court in (Union of India Vs. Dharmendara Textile Processors reported in (2008 (1) CTC 53) wherein the Hon'ble Supreme Court has held that the plain and unambiguous meaning will have to be given to the provision while interpreting it. Hence, this Court is of the opinion that in view of the clear provision mentioned under Section 149 of C.P.C., the Court can 'at any stage' permit the party to make the payment of deficit Court fee and once the said amount is paid, the same would relate back to the presentation of the plaint at the first instance. Therefore, on consideration of the above said facts, this Court is of the opinion that the above two revisions are liable to be dismissed and accordingly the same are dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
29.In the absence of any provision enabling issuance of notice to other side, this court is of the opinion that no notice is require to be issued to the proposed defendant in the suit even before numbering the plaint. Further, when an order is passed by the trial Court, allowing the payment of deficit Court fee, such an order cannot be challenged by filing a revision or at the time of deciding the suit unless mala fides are established by the defendant. In such a case, onus is heavily on the defendant to substantiate his case. It is well settled principle of law that the persons, who alleges mala fide will have to prove his case. Therefore, this Court is of the opinion that in the absence of any mala fide, the power exercised under Section 149 of C.P.C., cannot be interfered with. Further, the said plea being one of the fact, the same cannot be allowed to raise in the appeal, for the 1st time.
30. Before concluding, it is useful to refer the judgment of the Hon'ble Supreme Court in Prem Narain, Vs. Vishnu Exchange Charitable Trust and Others reported in (AIR 1984 SC 1896) wherein, a strong displeasure has been expressed by the Apex Court. The Hon'ble Supreme Court has held thus:-
"2.This is a mater in which the conduct of the respondents calls for severe condemnation for the reason that on a question of paltry deficit in payment of court fees instead of inviting decision of issues involved in the dispute by adjudication on merits, the matter has been brought to this court which from our point of view is a criminal waste of this Court's valuable time and for which the respondents are solely responsible. The appellant filed a suit. He was directed to pay deficit court fees to the tune of Rs.1904/-. The appellant asked for time to pay the deficit court-fees. The respondents contested this request. The learned Judge by his order dated October 23, 1981 rejected this very reasonable request and also rejected the prayer for extension of time for depositing the deficit court fees. The appellant carried the matter by way of Civil Revision Petition No.224 of 1982 to the High Court of Delhi. The learned Judge found it difficult to interfere with the order in exercise of the revisional jurisdiction. Hence, this appeal by special leave.
3.We are satisfied that the approach of the learned trial Judge was incorrect and we also find it difficult to appreciate how the High Court declined to interfere with the very reasonable request of the appellant. We accordingly allow this appeal and grant four weeks' time to the appellant to pay the deficit court fees.
4.As the respondents contested a very reasonable request of the appellant, they seem to be revelling in litigation and therefore they should be made liable to pay the costs. Respondent No.1 shall pay Rs.500/- to the appellant as costs within four weeks from today.
5. The appeal is disposed of accordingly."
31.The Following principles are emerged on a consideration of the various judgments referred to above:-
1.The power exercised by a Court under Section 149 is very wide and the discretion shall be exercised in favour of the plaintiff in the normal circumstances.
2.The power under Section 149 of C.P.C. can be exercised by the Court concerned 'at any stage' of the suit.
3. When the Court exercises the power under Section 149 of C.P.C. before numbering the plaint, the Court is not required to issue notice to the proposed defendant in the suit, since it is a matter between the Court and the plaintiff.
4.Once, the Court exercise the power under Section 149 of C.P.C., the same relates back with the presentation of the plaintiff at the first instance and therefore, the question of limitation does not arise.
5.When the power is exercised by the Court on an application filed under Section 151 of the Code of Civil Procedure, it is deemed to have been in exercise under Section 149 of the Code of Civil Procedure.
6.The Court can exercise its power under Section 149 of C.P.C. either with or without an application by the party concerned.
7.An order passed or deemed to have been passed under Section 149 of the Code of Civil Procedure, cannot be challenged and decided in a revision or at the time of final hearing in the normal circumstances, until and unless mala fide is raised and proved.
8.The onus of proving lack of bonofides or mala fides is heavily on the person who alleges the same.
9.The power exercised by the Court can also be challenged on the ground that the Court below has not followed the proviso to Order VII, Rule 11, of C.P.C.
10.The power under Order VII, Rule 11 of C.P.C. cannot be invoked when the plaintiff pays the amount as per the order of the Court as directed under Order VII, Rule 11 (b) and (c) of C.P.C.
MPK To The Subordinate Judge, Aruppukottai.