COMMON ORDER The respondent in both the revision petitions is one and the same and the question involved in both the revision petitions are also identical in nature and therefore, a common order is being passed to dispose of both the revision petition.
2. The respondent in C.R.P.No.3952 of 2007 filed O.S.No.51 of 2005 for directing the defendant in the suit to pay a sum of Rs.1,87,885/- with future interest. According to the plaintiff in O.S.No.51 of 2005, the defendant borrowed a sum of Rs.1,09,618/- on 24.12.2001 agreeing to repay the same with interest at the rate of Rs.2/- per hundred per month. In evidence of the said borrowing, the defendant executed a Promissory Note dated 24.12.2001. As the defendant did not make any payment, a notice dated 10.11.2003 was issued calling upon the defendant to pay the amount. Though the defendant acknowledged the notice, he did not come forward to make the payment and hence, O.S.No.51 of 2005 has been filed by the planintiff on the file of the Sub Judge, Gudiyatham.
3. O.S.No.51 of 2005 was resisted by the defendant by filing a written statement wherein he denied that he borrowed any money from the plaintiff and the promissory note is only a forged one. It was further pointed out in the written statement that the Promissory Note was alleged to have been executed on 24.12.2001, but, the suit was filed after the limitation period.
4. Pending O.S.NO.51 of 2005, the defendant in the suit filed an interim application under Order VII Rule 11 C.P.C. to reject the plaint. The main contention of the defendant is that the promissory note was alleged to have been executed on 24.12.2001 and the suit was filed on 17.12.2004. When the suit was filed on 17.12.2004, the entire court fee was not paid and there was deficit of Court fee payable by the plaintiff. The suit papers were returned by the Office for compliance and only on 18.10.2005, the plaintiff re-presented the suit papers with a petition to condone the delay of 287 days to re-present the papers. No petition was filed under Sec.149 C.P.C. seeking permission of the Court to pay the deficit Court fee. Even if such petition was filed, he was not put on notice to oppose the same and therefore, the suit is to be rejected on the ground of limitation. This was resisted by the plaintiff by filing a counter, wherein it is stated that the condone delay petition was allowed and therefore, the permission was deemed to have been granted by the trial court. Further, it was stated in the counter that the trial has already commenced and therefore, the present application is only to delay the suit proceedings.
5. The trial Court by order dated 26.07.2007, dismissed I.A.No.155 of 2006 by holding that the defendant though has a liberty to question the order passed in the condone delay petition, he did not do so and therefore, he is not entitled to get an order to reject the plaint. Aggrieved by the same, the defendant in O.S.No.51 of 2005 has filed C.R.P.No.3952 of 2007.
6. The very same respondent in C.R.P.No.3952 of 2007 filed another suit in O.S.NO.59 of 2005 in the Sub Court, Gudiyatham against the revision petitioner in C.R.P. No.3953 of 2007. In O.S.No.59 of 2005 also, the plaintiff stated that the defendant borrowed a sum of Rs.2,24,620/- on 24.12.2001 agreeing to repay the same with interest at the rate of Rs.2/- per 100 per month. In evidence of the said borrowing, the defendant executed a Promissory Note on 24.12.2001. As the defendant has not paid any amount, the plaintiff issued a notice dated 10.10.2003 calling upon the defendant to pay the amount. Though the notice was acknowledged by the defendant, he did not come forward to pay the amount and therefore, O.S.No.59 of 2005 has been filed directing the defendant to pay a sum of Rs.3,84,278/- with future interest.
7. This suit was resisted by the defendant by filing a written statement wherein the defendant denied the fact that he received any money as contended by the plaintiff and the Promissory note is a forged one. Pending the suit, the defendant filed I.A.No.156 of 2006 under Order VII Rule 11 to reject the plaint. The main contention of the defendant in I.A.No.156 of 2006 is that the promissory note was alleged to have been executed on 24.12.2001 and the suit was filed on 17.12.2004. On 17.12.2004 when the suit was filed, only a sum of Rs.1,000/- was paid as court fees and there was a deficit of a sum of Rs.27,821/- towards the Court fees payable by the plaintiff. The suit papers were returned for certain compliance on 22.10.2004. The suit papers were re-presented by the plaintiff on 9.11.2005 only with a petition to condone a delay of 308 days in re-presenting the suit papers. Even though the petition was returned on 11.11.2005 and again it was re-presented on 15.11.2005. The said petition to condone the delay was allowed on 22.11.2005 condoning the delay only. Therefore, no permission was obtained from the trial Court under Sec.149 C.P.C. seeking permission of the court to pay the deficit Court fee. Hence, the suit is to be rejected on the ground of limitation. This application was resisted by the plaintiff by filing a counter wherein it is stated that by condoning the delay and admitting the plaint, permission was deemed to have been granted by the trial court. Further, the trial has also begun and the suit is posted for defendant's side evidence. Hence, he sought for the dismissal of the interim application.
8. The trial court by order dated 27.06.2007 dismissed I.A.No.156 of 2006 by holding that the defendant had an opportunity to question the order passed, condoning the delay in re-presentation and therefore, at this period of stage, the defendant is not entitled to maintain this application to reject the plaint. Aggrieved by the order of the trial court dated 27.06.2007, the defendant filed C.R.P. No.3953 of 2007.
9. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. I have also perused the entire documents available on record.
10. The learned counsel for the revision petitioner submits that when there is no specific application under Sec.149 C.P.C. seeking permission of the Court to pay the deficit Court fee, the plaint ought not to have been numbered and condoning the delay in re-presentation did not amount condoning the delay in paying the deficit Court fees. In support of his submissions, he relied on a decision of the Division Bench of this Court reported in (2003)2 M.L.J. 305 (K.Natarajan Vs. P.K.Rajasekaran) and decision of a Single Judge of this court reported in (2007)1 M.L.J. 669 (V.N.Subramaniyam Vs. A.Nawab John and others).
11. Per contra, the learned counsel for the respondent submits that when condoning the delay in re-presenting the suit papers, it is deemed that the trial Court has also permitted the plaintiff to pay the deficit Court fees. At any event, he contends that after the orders are delivered and trial has commenced, it is not open to the defendant to file a petition under Order VII Rule 11 to reject the plaint. In support of his submissions, he relied on the decisions of the Hon'ble Supreme Court reported in 2007(10) SCC 59 (Ram Prakash Gupta Vs Rajiv Kumar Gupta) and 2009(4) L.W. 75 (P.K.Palanisamy Vs N.Arumugam and another).
12. I have considered the rival submissions carefully with regard to facts and citations.
13. In C.R.P.No.3952 of 2007, it is an admitted fact that the Promissory Note was executed on 24.12.2001. The suit in O.S.No.51 of 2005 was filed on 17.12.2004 i.e., well within the period of three years. It is also an admitted fact that the entire Court fee was not paid on 17.12.2004, when the suit papers were filed by the plaintiff. Admittedly, the suit papers were returned for complying with certain defects. Only on 18.10.2005, the papers were re-presented complying with all the requirements with a petition to condone the delay of 287 days in re-presenting the papers. Admittedly, on 18.10.2005 when the plaint was re-presented with full Court fee, the suit was barred by limitation.
14. Similarly, in C.R.P.No.3953 of 2007, the Promissory Note was executed on 24.12.2001 and the suit in O.S.No.59 of 2005 was filed on 17.12.2004 i.e. well within the three years period. On 17.12.2004, when the suit was filed, only a sum of Rs.1000/- was paid as Court fees and there was a deficit of a sum of Rs.27,821.50 was due and payable towards the deficit Court fees. The suit papers were also returned for certain compliances and only on 9.11.2005, the suit papers were re-presented with a petition to condone a delay of 308 days in re-presenting the suit papers. Admittedly, on 9.11.2005, the three years period was already expired and the suit is barred by limitation on that date.
15. In the light of the above facts and circumstances, the only point that arises for consideration before this Court is that, whether filing only a condone delay petition without specifically filing a petition under Sec.149 C.P.C., the plaintiff could proceed with the suit proceedings.
16. When this was sought to be questioned by the defendants in the suit, the trial court rejected the defendant's contention by holding that when the defendant could come forward to question the order passed by the trial court condoning the delay in re-presentation, the defendant could not maintain the applications at this delayed stage when the suit is in the trial stage.
17. Before proceeding further, let me refer to the decision relied on by both the learned counsel in support of their contentions:
18. In (2003)2 M.L.J. 305 (cited supra), a Division Bench of this court held as follows:
"21. We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:
(1) Sec.149 of C.P.C. is a proviso to Sec.4 of the Tamilnadu Court Fees and Suits Valuation Act, 1955.
(2) The word 'document' employed in Sec.149 of C.P.C. would include plaint also.
(3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned atleast on the third day (excluding the date of presentation so also the intervening holidays).
(4) If the suit is presented on the last date of limitation affixing less Court-fee, than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for any paying the requisite Court-fee.
(5) In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court-fee, shall order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite Court-fee and the Court is satisfied on affidavit by the party that the mistake happened due to some bonafide reasons such as calculation mistake or the alike.
(6) The discretion referred to in Sec.149 of C.P.C. is a judicial discretion and the same has to be exercised in accordance with the well established principles of law.
(7) But however, in cases where the time granted to pay the deficit Court-fee falls within the period of limitation, the defendant need not be heard.
(7A) In case where the plaint is presented well within the period of limitation with deficit Court-fee and the Court returns the plaint to rectify the defect giving sometime (2 or 3 weeks), which also falls within the period of limitation, but the plaint is re-presented paying deficit Court-fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial Court-fee (not almost entirety) at the first instance, before condoning the delay in paying the deficit Court-fee.
(8) In cases where part of the time granted to pay the deficit Court-fee falls outside the period of limitation and the deficit Court-fee is paid within the time of limitation (i.e., the plaint is re-presented with requisite Court-fee), the Court need not wait for the objections of the defendant and the plaint can be straight away numbered.
(9) The Court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court Fee Act or where he could not pay the required Court-fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial Court-fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in.
But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying Court-fee, awaiting the result of some other litigation, expecting compromise, etc.) (10) If the Court had exercised its discretion without issuing notice, then it is open to the defendant to file application under Sec.151 of C.P.C. for proper relief. It will be open to the defendant to file a revision under
Art.227 of Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law (as laid down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law."
19. In (2007)1 M.L.J. 669 (cited supra), this Court observed as follows:
(1) In the absence of any order being passed by the Court for granting time for payment or any other due, the plaintiff is not protected and the suit is liable to be rejected.
(2) When there is no invocation of the provisions of Sec.149 C.P.C. and consequently prayer to condone the delay in the payment of the deficit Court-fee while representing the plaint, the trial Court is not correct by exercising the discretion in favour of the plaintiff.
(3) Relief under Sec.149 is a discretionary power of the Court and it is to be exercised in a manner known to law.
(4) High Court can exercise powers under
Article 227 of the Constitution of India when there is a failure to exercise judicial discretion in a manner known to law.
20. A perusal of the above judgments will make it very clear that when the plaintiff re-presents the returned papers and if there is any deficit of Court fee payable by the plaintiff, then there must be an application under Sec.149 to condone the delay in paying the deficit Court-fees and a mere application to condone the delay in re-presentation alone is not sufficient. If the trial Court disregarding the well settled principle as stated therein, permitted the plaintiff to number the suit, then it is open to the defendant to approach this Court under
Article 227 of the Constitution of India to question the same at any stage, even if the suit is in the trial stage.
21. Admittedly, in the present case, though the suits are filed well within the limitation period, there was deficiency in the Court-fee payable by the plaintiff. It is also an undisputed fact that when the suit papers were re-presented by the plaintiff, the suit was barred by limitation and in such circumstances, the plaintiff ought to have taken an application under Sec.149 C.P.C. to condone the delay in paying the deficit Court fees.
22. Further, when such an application is being filed, an opportunity should also be given to the defendant to oppose the same. Admittedly, this was not done by the plaintiff and the trial Court has also violated this fact. Therefore, the defendant could certainly question its illegality in following the procedure and maintain the Civil Revision petition, even though the suit is in the part heard stage. Filing a condone delay petition in re-presenting the suit papers is standing on a different footing as in a petition to condone the delay in re-presentation, it is for the Court to decide whether the delay is to be condoned or not. Further, the Courts are always liberal and in fact ought to be liberal in considering the condone delay petitions in re-presenting the papers in the interest of justice. In such petitions, notice itself is not ordered to the other side as it is essentially a matter between the Court and the petitioner. But, in a petition filed under Sec.149, the petitioner has to explain the reasons for not paying the entire Court-fees. At the time of filing the suit, especially when the suit papers are re-presented after the limitation period. It is not a formal application and unless genuine reasons are given by the petitioner, the Courts cannot permit the petitioner to pay the deficit Court fees as already the period of limitation is expired. That apart, the other side has to be put on notice to oppose the application as admittedly on that date the suit is barred by limitation.
23. In the present case, it is not in dispute that such a well established procedure has not been followed by the trial court and the trial court has simply condoned the delay in re-presentation as well as the delay in payment of the deficit Court fees. Such orders passed by the trial Court could be questioned by the defendant under
Article 227 of the Constitution of India even though the order passed by the trial court in condoning the delay in re-presenting the suit papers is not questioned by the other side.
24. Hence, I have no hesitation in holding that the orders under challenge in these two revision petitions are liable to be set aside as both the suits are to be rejected on the ground that they are barred by limitation. Accordingly, they are rejected.
25. The learned counsel for the respondent relying on the decision of this Hon'ble Supreme Court reported in 2007(10) SCC 59 (cited supra) submitted that rejection of the plaint at a belated stage after filing of the written statement, framing of issues and cross examination is disapproved by the Hon'ble Supreme Court and therefore, he submitted that the trial court has correctly dismissed the applications filed belatedly.
26. I am unable to accept the submission made by the learned counsel for the respondent.
27. A perusal of the above decision rendered by the Hon'ble Supreme Court would show that the facts are totally different in that case and the question of payment of Court fee after the expiry of the limitation period for filing the suit does not arise for consideration before the Hon'ble Supreme Court and therefore, that decision is not at all useful to the case of the respondent.
28. The other judgment on which great reliance was placed by the respondent is the decision of the Hon'ble Supreme Court reported in 2009(4) L.W. 75 (cited supra).
29. A perusal of the above judgment would also show that the facts in that decision are peculiar and totally different.
30. In the case before the Hon'ble Supreme Court, a suit for recovery of money was instituted on 04.10.1998 and the plaint was presented on 5.10.1998. The plaint was accompanied by a Court fee Re.1 only and the plaintiff filed an application under Sec.148 C.P.C. seeking six weeks time for payment of deficit Court fee. By order dt.7.10.1998, the trial court granted six weeks time as prayed for. On 8.11.2008, another petition was filed seeking eight weeks time on the premise that the Stamp fee papers were not available in the Sub Treasury. On 20.11.1998, the trial Court granted eight weeks time. Another eight weeks time was granted by the trial Court on 21.01.1999. However, the plaintiff deposited the deficit Court fee on 17.02.1999 only which was accepted by the trial Court. The defendants entered appearance on 10.01.2001 and on 17.02.2003, a written statement was filed without raising any objection with regard to the delay in payment of Court fee. Therefore, no issues were framed in that behalf. Thereafter, the defendants remained ex-parte and an exparte decree was passed on 29.09.2004. The same was set aside by the trial Court on an application filed by the defendants after a gap of 289 days. Aggrieved by the setting aside of the ex-parte decree, the plaintiff filed a revision and the High Court ruled a conditional order that the suit would be revived only if the defendants deposited a sum of Rs.3 lakhs. This order was not at all challenged and the amount was deposited. The trial commenced. The plaintiff was examined and cross examined. At that stage, i.e., on or about 04.01.2008, the defendants filed an application under Order VII Rule 11(c) to reject the plaint urging for the first time, the suit presented on 5.10.1998 was barred by limitation as the extension granted by the trial Court under Sec.149 C.P.C. without issuing notice. The trial Court dismissed the application against which a Civil Revision petition was filed by the defendant under
Article 227 of the Constitution of India. The High Court allowed the Civil revision petition on 28.11.2008 and aggrieved by the same, the plaintiff approached the Hon'ble Supreme Court.
31. Only in the above mentioned backdrop of events the Hon'ble Supreme Court held that the High Court erred in rejecting the plaint.
32. The facts in the present case are totally different. Here, the suit was filed in 2005 and no petition was filed by the plaintiff for extension of time for the S.RAJESWARAN,J vaan payment of deficit Court fee. In the written statement itself, a specific objection was raised by the defendants with regard to the limitation point. The statement was filed on or about 23.03.2006 in one case and 03.04.2006 in another case. On or about 28.11.2006 itself, applications were filed to reject the plaint. Therefore, the facts in the present case are clearly distinguishable and the decision of the Hon'ble Supreme Court reported in 2009(4) L.W. 75 (cited supra) could not be pressed into service to the facts of the case in hand.
33. In the result, both the Civil revision petitions are allowed. No cost. Connected miscellaneous petitions are closed.
vaan To The Subordinate Judge, Gudiyatham