9911796707
TMI Blog2009 (7) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,00,000/- each on 8th June, 1996 towards partial discharge of his obligation. However, the cheques when presented to the Banks were returned with the remarks "No fund". The appellant caused a legal notice to be served on the respondents on 29th August, 1998, which was received by them on 2nd September, 1998. The appellant instituted a suit for recovery of money against the respondents on or about 4th October, 1998 before the Subordinate Judge, Salem. The plaint was presented on 5th October, 1998 as the 2nd, 3rd and 4th October, 1998 were holidays for the courts. The plaint was accompanied by a court fee of Re.1/- only. He also filed an application purported to be in terms of Section 148 read with Section 151 of the Code of Civil Procedure (for short, "the Code") seeking six weeks time for payment of the deficit court fees. The trial court granted six weeks' time for payment of the deficit court fees by an order dated 7.10.1998. On or about 8th November, 2008, another petition was filed by the appellant seeking eight weeks' time for payment of deficit court fees on the premise that the stamp fee papers were not yet available in the Sub-Treasury. The trial court g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was put to him. Indisputably, an application marked as I.A. No. 22 of 2008 under Order VII Rule 11(c) was moved by the respondents on or about 4th January 2008 seeking for rejection of the plaint urging for the first time that the suit presented on 5th October 1998 was barred by limitation as the extension of time granted by the trial court under Section 149 read with Section 151 of the Code and condonation of delay in re-filing was passed without issuing notice to them. The appellant contested the said application by filing a counter affidavit thereto. The trial court by reason of order dated 5th February, 2008 dismissed the said application filed by the respondents. Aggrieved thereby, the respondents preferred a Revision Petition marked as Civil Revision Petition No. 815 of 2008 under Article 227 of the Constitution of India before the High Court, which has been allowed by reason of the impugned judgment. 4. Appellant is, thus, before us. 5. Mr. E. Padmanabhan, learned Senior Counsel in support of the appeal urged: (i) The High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that the legality of the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es payable thereupon. Section 4 of the Court Fees' Act, 1870 mandates the same in the following terms: "4. Fees on documents filed, etc., in High Courts in their extraordinary jurisdiction:- No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High Courts in any case coming before such Court in the exercise of its extraordinary original civil jurisdiction; or in the exercise of its extraordinary original criminal jurisdiction; in their appellate jurisdiction; -- or in the exercise of its jurisdiction as regards appeals from the judgments (other than judgments passed in the exercise of the ordinary original civil jurisdiction of the Court) of one or more Judges of the said Court, or of a division Court; or in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence; as Courts of reference and revision.- or in the exercise of its jurisdiction as a Court of reference or revision; unless in respect of such document there be paid a fee of an amount not less than that indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain the said plea, the High Court should not have interfered therewith. 9. The respondents in their written statement did not raise any issue with regard to the correctness or otherwise of the orders dated 7th October, 1998, 8th November 1998, 20th November, 1998 and 21st January, 1999. Rightly or wrongly, the plaint was accepted. The deficit court fee has been paid. The court was satisfied with regard to the bona fide of the plaintiff. Hearing of the suit proceeded; not only issues were framed but the witnesses on behalf of the parties were also examined by both the parties. It is difficult to believe that from 10th January 2001 to 4th January 2008, the respondents or their counsel did not have any occasion to inspect the records. Any counsel worth itself would not only do so but even without doing so would address himself a question as to why a suit filed on 4th October 1998 was entertained in the year 2000. The suit was at one point of time decreed ex parte. The same was set aside on certain conditions. Evidently, the conditions laid down had been satisfied only upon obtaining an extension of time. In the aforementioned backdrop of events, we may not have to go into the corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperly canvass the correctness of the claim or entitlement. The claim cannot be kept in uncertainty. If in an appeal under Section 54 of the Land Acquisition Act the amount is initially kept low and then depending upon the mood of the appellate court, payment of deficit court fee is sought to be made, it would create unhealthy practice and would become a game of chess and a matter of chance. That practice would not be conducive and proper for orderly conduct of litigation." 12. It is now a well settled principle of law that an order passed by a court having jurisdiction shall remain valid unless it is set aside. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors. [AIR 1996 SC 906], it is stated: "7. In Halsbury's Laws of England, 4th edition, (Reissue) Volume 1(1) in paragraph 26, page 31, it is stated, thus: "If an act or decision, or an order or other instrument is invalid, it should, in principle be null and void for all purposes: and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. It is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor. In Ram Sunder Ram v. Union of India & Ors. [2007 (9) SCALE 197], it was held: ".....It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law [see N. Mani v. Sangeetha Theatre and Ors. (2004) 12 SCC 278]. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007) 10 SCC 59], it was held :- "22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, the plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order 7 Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the appellant-plaintiff to the effect that the suit filed by him is barred by limitation. 23. On going through the entire plaint averments, we are of the view that the trial court has committed an error in rejecting the same at the belated stage that too without adverting to all the materials which are available in the plaint. The High Court has also committed the same error in affirming the order of the trial court." 16. The question which survives for consideration is as to what is the scope of Section 149 of the Code? In Mahasay Ganesh Prasad Ray & Anr. v. Narendra Nath Sen & Ors. [AIR 1953 SC 431], this Court held that the court fee is a matter between the State and the suitor. Mr. Venugopal would urge that the said observations were made keeping in view the fact that the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari. No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council. But we are of opinion that in this case the Court could have exercised its powers first on 13-7-1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions, Sections 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come." In Mannan Lal v. Mst. Chhotaka Bibi (Dead) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter registering the suit on 10-4- 2000 and consequently the order dated 3-11-2001 rejecting the defendant-respondents' application under Order 7 Rule 11 CPC were perfectly in accordance with law and within the discretion conferred on the trial court with which the High Court ought not to have interfered in exercise of the jurisdiction vested in the High Court under Section 115 CPC. The order of the High Court, if allowed to stand, is likely to occasion failure of justice." Yet again in K.C. Skaria v. Govt. of State of Kerala & Anr. [(2006) 2 SCC 285], it was held: "20. The appellant next attempted to press into service Section 149 CPC to contend that he ought to have been given an opportunity to pay the deficit court fee on the total amount due for the work done. Section 149 provides that where the whole or any part of court fee prescribed for any document 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 court fee had been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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