CRP PD/657/2006 of V.N.SUBRAMANIYAM, Vs A.NAWAB JOHN, on 22 December 2006

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22-12-2006CORAMTHE HON'BLE MR.JUSTICE S.ASHOK KUMAR

CRP(PD) Nos: 657, 658 and 797 of 2006

and CMP.Nos: 7528, 6382 and 6383 of 2006

...V.N.Subramaniyam.. Petitioner in all CRPs/2nd DefendantVs.1. A.Nawab John2. S.Muthusamy3. S.Jaganathan4. K.R.Natarajan5. K.r.Murugananthan6. Sengoda Gounder.. Respondents in all CRPs Plaintiff 1st DefendantFor Petitioner :: Mrs.Hema Sampath for Mr.S.Saravanan (CRPs. 657 and 658/06) Mr.MJP.Rajkumar (CRP.797/06)For Respondents :: N.Manokaran for RR 1 to 5 R.6 given up Civil Revision Petition No:657/06 is filed under Act 227of Constitution of India against the order dated 22.1.2004,made in IA.No. 75 of 2004 in unnumbered O.S., passed by thelearned Subordinate Judge, Bhavani.

Civil Revision Petition No:658/06 is filed under Act 227of Constitution of India against the order dated 22.1.2004,made in IA.No. 76 of 2004 in unnumbered O.S., passed by thelearned Subordinate Judge, Bhavani.

Civil Revision Petition No:797/06 is filed under Act 227of Constitution of India against the order dated 31.3.2006,made in IA.No. 3 of 2006 in O.S.No.4 of 2005, passed by thelearned Addl.District Judge, Fast Track Court-IV, Erode atBhavani. https://hcservices.ecourts.gov.in/hcservices/

The revision petitioner who is a subsequent purchaser ofthe suit property and impleaded as the second defendant in thesuit suit, has filed these revisions as against theallowing of the I.A.Nos:75 and 76 by the learned SubordinateJudge, Bhavani, which have been filed to condone the delay of585 days and 1328 days respectively in representing the Plaintwith deficit court fee and also against the dismissal of hisI.A.NO.3 of 2006 filed for rejection of the Plaint, passed bythe learned Additional District Judge,(Fast Track Court-IV),Bhavani.

2. Learned counsel for the revision petitioner contendedthat the revision petitioner who is the 2[nd] defendant in thesuit purchased the land from Vadivelu, the power agent of thesixth respondent on 8.4.1999. The respondents/plaintiffs 1 to 5filed a suit for specific performance against the 6[th]respondent/1st defendant on 20.8.1998 before the Sub Court,Bhavani based on the agreement dated 22.3.1995. Therespondents/plaintiffs ought to have paid a court fee ofRs.96,603/= for the relief sought for. But they paid onlyRs.2000/= and on 24.8.1998 the Plaint was returned for certaindefects, including the deficit court fee. For compliance of thesame, three weeks time was granted. But the plaint wasrepresented only on 3.5.2002 with a petition u/s.148 and 151CPC to condone the delay of 1328 days. Again the plaint wasreturned on 3.6.2002 for non compliance of the earlier queriesand also the deficit court fee. Again two weeks time wasgranted for rectifying the defects. But the Plaint wasrepresented only on 22.1.2004 with a petition under Section 148and 151 CPC to condone the delay of 585 days in representationand the two I.A.Nos:75 and76 of 2004 were allowed on 22.1.2004.The plaint was returned on the same ay ie.., on 22.1.2004 dueto some defects and two weeks time was given to comply with thedefects. But the plaintiffs represented the Plaint only on9.4.2004 with a petition to condone the delay of 70 days beforethe District Court, Erode due to pecuniary jurisdiction and thesuit was numbered as O.S.No.100 of 2004. The sixth respondentwas set ex parte. The petitioner, on his petition wasimpleaded by orders dated 9.3.2005 in I.A.No.1532 of 2004.According to the revision petitioner, the plaintiffs failed toinvoke Section 149 CPC to enlarge the time for payment ofdeficit court fee. Hence the plaint filed by the respondents 1to 5 in O.S.No.4 of 2005 is liable to be rejected.

3. Learned counsel for the the respondents/plaintiffscontended that the suit was originally filed and numbered onlyagainst the sixth respondent Sengoda Gounder. As the sixthhttps://hcservices.ecourts.gov.in/hcservices/respondent did not file any written statement, he was set ex parte and the case was posted for ex parte evidence on5.10.2004. At that time only, the revision petitioner hasfiled the I.A., for his impleadment since he purchased the suitproperty on 8.3.1999 and he has no locus standi to raise anyobjection to the condonation of the delay. Further theplaintiffs did not have the knowledge of the purchase by therevision petitioner and the purchase is not binding on them.The alleged sale by the revision petitioner is only a sham andnominal transaction. The plaintiffs have entered intoagreement with the 6[th] respondent on 22.3.1995 for a sum ofRs.13,31,663/= for sale of the suit property and they have madeseveral payments. After paying the deficit court fees by takingout condonation applications, the delay was excused and theplaint was numbered by the District Court due to pecuniaryjurisdiction as O.S.No:100 of 2004 and transferred to the fileof the Addl.District Court (FTC-IV), Bhavani and renumbered asO.S.No: 4 of 2005. The revision petitioner was not a party tosuch applications as he had been impleaded only subsequently.As the payment of court fee is a matter between the court andthe plaintiffs, the revision petitioner has no locus standi toquestion the same. Even the present CRPs are not maintainableeither under Art.227 of the Constitution of India or underSection 115 CPC.

4. Learned counsel for the respondents/plaintiffs alsocontended that Section 26 CPC only stipulates that the Plaintshould be "duly presented" and therefore the presentation ofthe Plaint cannot be invalidated for payment of full court fee.Otherwise, most of the suits will be rejected at the thresholdfor incomplete presentation. He also contended that the suitis fro specific performance or in the alternative for refund ofadvance amount. The plaintiff is having limitation to file afresh suit for refund of advance amount upto the year 2010,whereas he has already prayed for the relief of refund ofadvance amount, whileso, there is no need for filing separatepetition under Section 149 CPC when he has time to file thesuit itself. Section 55(6)(b) o the Transfer of Property Actenables the plaintiffs to file the suit within a period of 12years as held in AIR 2000 SC 573. Further, the purchase by therevision petitioner is hit by lis pendense and his title is notvalid in law as per Section 52 of the T.P.Act.

5. Learned counsel for the respondents further contendedthat Section 149 by using the word "may" and "at any stage"widens the scope and discretionary power of the court and thusa liberal view in regard to the power of the court under thissection has to be taken. The discretion cannot be refused to beexercised because the application is labelled under a wrongSection. If the suit has not been properly valued, the court isbound to grant time for payemnt of the deficiency under Orer 7Rule 11 (c.) CPC. A Plaint cannot be rejected under Order 7https://hcservices.ecourts.gov.in/hcservices/Rule 11 (c.) for being insufficiently stamped, unless the

plaintiff is first called upon to supply the deficiency withina specified time and unless the plaintiffs fails to do sowithin such time. Order 7 rule 11 comes into play only when theplaintiff refused to pay the balance court fee even after thedefect has been pointed out, and the court cannot straight awayreject the plaint. According to the learned counsel, when aparty prays condonation of delay in representation dulycomplying with the return endorsement, and has not asked thecourt to extent the time to pay the court fees, but the courtnevertheless admits the suit and receives the fee, the onlyreasonable interpretation is the court has implicitly thoughnot explicitly, extended the time and it can do within themeaning of Section 149 even though the petition has been filedunder Section 151 CPC. He also contended that the laws ofprocedure are only meant to regulate effectively, assist andaid the object of doing substantial and real justice and an actof court shall not prejudice or foreclose even an adjudicationon merits of substantial rights of citizens. Procedural lawshall always been viewed as the handmaid of justice and shallnot meant to hamper the cause of justice or sanctifymiscarriage of justice and technical objections which dent tobe stumbling blocks to defeat the deny substantial andeffective justice should be strictly viewed for beingdiscouraged except where the mandate of law inevitablynecessitates its.

6. However, the Learned counsel for the revisionpetitioner contended that on two occasions I.A., were filedonly under Sections 148 and 151 CPC to condone the delay ofrepresentation alone and there was no separate application orprayer for condoning the delay of payment of deficit court feeand thus there is no prior permission obtained to pay thedeficit court fee.

7. A perusal of the impugned orders and the typed set ofpapers would clearly show that the delay condonationapplications have not been field under Section 149 CPC or aseparate prayer has been included to pay the deficit court feewith such delay. In fact the said applications have been filedunder Sections 148 and 151 CPC to condone the delay ofrepresentation alone. The decisions in PadmidikkalaSitharamayya and others Vs. Ivaturi Ramayya and another (1938MLJ 515 DB) and S.V.Arjunaraja Vs. P.Vasantha (2005 (5) CTC401, this court held that in the absence of specificapplication invoking Section 149 CPC and in the absence of anyorder passed by the court granting time for payment orenlargement, the plaintiff is not protected and the suit isliable to be rejected. It is also held that mechanical returnof the plaint, which cannot be said that n order has beenpassed, extending the time for payment of court fees, wouldsave the limitation, if the court fees is paid, after thehttps://hcservices.ecourts.gov.in/hcservices/period of limitation prescribed is lapsed.

8. Apart from that sufficient cause was not shown in thetwo affidavits filed in support of the applications to condonethe delay of representation. In I.A.No.76/2004 the reasongiven was that due to non availability of stamp paper, propercourt fee could not be paid. In I.A.No:75/2004 no reason hasbeen stated for such deficit court fee. Even for the delayalso the conventional reason of jaundice has been stated andthe plaintiffs alleged that they have been taking Siddhatreatment for such ailment. Even such affidavits have beenfiled only by the counsels and not by the parties. Butaccepting such reasons, the delay in representation as well asthe payment of deficit court fee has been accepted by the courtbelow.

9. Further, no notice was given to the contestingdefendant before condoning the delay of re-presentation. InK.Natarajan Vs. P.K.Rajasekaran reported in 2003 (2) MLJ 305DB, this court clearly indicated that the notice must go to thedefendant if the court fee is paid after the period oflimitation. In the case on hand, the suit was filed on21.8.1998. Even assuming that the limitation started to runonly on that date, part court fee was paid only on 3.5.2002,after nearly 4 years and as per Art.54 of the Limitation Act,suit could be filed only within three years. If the dictum laiddown in the above case is to be applied, then notice had to beissued to the defendant, but admittedly no notice was issued tothe defendant. In fact no order was passed on 3.5.2002 namelyon the date of deficit court fee, but only on 22.1.2004 thedelay has been condoned. In fact the delay of 1328 days had notbeen condoned when the plaint was represented on 3.5.2002.

10. As regards pecuniary jurisdiction, the court belowerroneously allowed the two Interlocutory Applications on22.1.2004 since the City Civil Courts and Chennai City CivilCourt Amendment Act, 2003 and Tamil Nadu Act 1 of 2004 cameinto force even as on 8.1.2004. Thus on and from 8.1.2004 theSubordinate Court, Bhaveni is ousted from the pecuniaryjurisdiction to try a suit for the value of Rs.13,31,663/= andit is an abuse of process of law.

11. The question of non payment of proper court fee canbe raised even at the stage of trial or in the appellate stage.The argument of the learned counsel for the respondents thatthe revision petitioner has no locus standi as he was only asubsequent purchaser and impleaded in the suit is fallacious.Because, the revision petitioner obtained leave of this courtto file the two CRPs by order dated 13.4.2006 in CMP.Nos:17477 and 18077 of 2005. In Janaswami Venkataseshamma Vs. SriPrativadi Bhayankaram Ranganayakamma reported in 1950 (I) MLJ79 (DB), this court held that when the delay is executedhttps://hcservices.ecourts.gov.in/hcservices/without notice to other side, the other side would be at liberty at a subsequent stage or even at the hearing of theappeal to contend that the delay should not have been excused.This would support the revision petitioner's contention thatthough he was impleaded as defendant at a later stage, he canquestion the illegality of the orders in I.A.Nos.75 and 76 of2004.

12. Further, the relief under Section 149 CPC is adiscretionary power of the Court to be exercised in a mannerknown to law. Suppose if a bona fide mistake is crept in, sayfor instance the plaintiff wrongly valued the suit under aparticular provision or where something happened beyond hiscontrol, for example, robbery or non availability of stamps,then the court will be more in favour of granting time to theplaintiff to pay deficit court fee. But at the same time, ifthe plaintiff so acted (a) to harass the defendant, (b) did itexpecting a compromise or awaiting result of some litigation or(c) because of contumacy or male fides on his part, courts willnot exercise its jurisdiction in his favour. By and large, theposition is, the Court must be satisfied about the bona fidemistake or some happenings beyond his control as has been laiddown by a Division Bench of this Court in 2003 (2) MLJ 305(K.Natarajan Vs. P.K.Rajasekaran). But in the present casethough once it was alleged that there was non availability ofsufficient stamp paper, but on the other occasions when theplaint was represented with deficit court fee, even such a pleahas not been raised. But the court has without appreciating thebona fides of the plaintiffs allowed the InterlocutoryApplications. In AIR 1995 SC 1945 (Buta Singh Vs. Union ofIndia) the Hon'ble Supreme Court held that the aid of Section149 could be taken only when the party was not able to pay thecourt fee in circumstances beyond control and under unavoidablecircumstances and the court would be justified in appropriatecases to exercise the discretionary powers under Section 149CPC after giving due notice to the affected party and it isnot an automatic relief on mere asking.

13. As regards the maintainability of these CRPs 657 and658 of 2006 which are filed under Art.227 of the Constitutionof India, as held in 2003 (2) MLJ 205 DB, referred to supra,the defendant could file a revision under Art.227 especiallywhen there is a failure to exercise judicial discretion in amanner known to law. CRP.No.797/2006 has been filed underSection 115 CPC as the refusal to reject the Plaint would comeunder proviso (a) and (b) of Section 115 CPC and hence theserevisions are maintainable.

14. As regards invocation of Section 151 PC instead of 149CPC, it is to be held that only in the absence of any specificprovision, the inherent provision of Section 151 can be invokedas has been held in Muthulingam Vs. Gangai Ammal reported inhttps://hcservices.ecourts.gov.in/hcservices/2001 (2) L.W. 347. Thus, in the present case the plaintiffs could have invoked Sec.149 CPC as well to condone the delay inin paying the deficit court fee while representing the Plaint.

15. As regards the locus standi of the revision petitionerto question the orders passed in the InterlocutoryApplications, before his impleadment in view of Or.1 R 10(5)read with Section 21 of the Limitation Act, it is to be statedthat pursuant to the devolution of interest to him from thefirst defendant pendente lite on his purchase Section 21(2) ofthe Limitation Act only will apply to this case and Section 21(1) will not be applicable and therefore the revisionpetitioner is entitled to challenge as though he was a partyfrom the date of the suit. This proposition of law is fortifiedin the judgement of the Hon'ble Supreme court in VelamuriVenkata Sivaprasad Vs. Kothuri Venkateshwaralu and others,reported in AIR 2000 SC 434.

16. Under these reasons since there is no invocation ofthe specific provision of Section 149 CPC and consequentialprayer to condone the delay in payment of the deficit courtfee while representing the Plaint, the Subordinate Judge haserred in allowing the I.A.Nos:75 and 76 of 2004 by exercisingthe discretion without analysing the bona fides of theplaintiffs case and without giving notice to the defendant.Accordingly, the CRP Nos:657 and 658 of 2006 are allowed.Consequently, CRP.No:797 of 2006 is also allowed which is arevision filed against the dismissal of the application filedfor rejection of the plaint.

17. In the result, all the three CRPs are allowed. Thenumbering of the suit No.100 of 2004 by the District Court,Erode and renumbering the same as O.S.No:4 of 2005 on itstransfer by the Additional District Judge (FTC-IV), Erode atBhavani is set aside and consequently the trial Corut isdirected to struck off the said suit from its file.

gkv

Sd/

Asst.Registrar/true copy/

Sub Asst.Registrar

Copy to:

1. The Addl.District JudgeFTC-IV, BhavaniErode District,

2. The Subordinate Judge,Bhavani

+ 1 cc to Mr.S. Saravanan, Advocate, SR No.64899

+ 3 ccs to Mr.N. Manokaran, Advocate,

SR No.65099, 65103 & 65098

NG(CO)

SR/4.1.2007

CRP(PD)Nos.657, 658and 797/06