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2009 (7) TMI 1311

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..... le in the sub-treasury. The Presiding Officers of the local Civil Courts in a given situation would be aware thereof. It may, therefore, consider the prayers made in that behalf by a suitor liberally. If court fees are not available in a sub-treasury for one reason or the other, the court having regard to the maxim '' lex non cogit ad impossibilia would not reject such a prayer. Payment of court fees furthermore is a matter between the State and the suitor. Indisputably, in the event a plaint is rejected, the defendant would be benefited thereby, but if an objection is to be raised in that behalf or an application is to be entertained by the court at the behest of a defendant for rejection of the plaint in terms of Order VII rule 11(c) of the Code, several aspects of the matter are required to be considered. 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 .....

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..... 2. This appeal is directed against a judgment and order dated 28th November, 2008 passed by a learned single judge of the High Court of Judicature at Madras whereby and whereunder a Civil Revision Petition filed under Article 227 of the Constitution of India against the Order dated 05th February, 2008 passed by the Additional District Munsif cum Fast Track Court No.II, Salem in I.A. No. 22 of 2008 in O.S. No. 114 of 2004 has been allowed. 3. The brief facts necessary to be noted for the purpose of disposal of this case are as under: The appellant allegedly advanced a loan for a sum of ₹ 5,90,000/- to the respondent No.1 on 29th January, 1995. As the respondent No.1 failed to refund the amount despite repeated demands from the appellant, a Promissory Note was got executed by her on or about 2nd October, 1995. The respondent No. 1 issued two cheques for a sum of ₹ 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 Sept .....

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..... ng aggrieved by and dissatisfied with the said order, the appellant preferred Revision Petition under Article 227 of the Constitution of India before the High Court on or about 8th June, 2007. The learned single judge of the High Court after observing that the modus operandi of the respondents is to protract the suit proceedings, ruled a conditional order, viz., the suit would be revived only if the respondents deposit ₹ 3,00,000/- by order dated 8th June, 2007. That order became final. Even at that stage no objection as regards non-deposit of court fees within reasonable time was raised by the respondents. Indisputably, the respondents deposited the money after getting an extension as well and the suit was revived. The appellant was examined and cross-examined so also his witness. However, It may be noticed that no suggestion to impeach the credibility as to non-availability of court fee or limitation 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 ba .....

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..... the Code being limited, it was obligatory on its part to assign sufficient and cogent reasons therefor. (iii) Non-grant of opportunity of hearing to the respondents by the trial court and non-recording of reasons rendered the orders in question as nullities and in that view of the matter, an application under Order VII Rule 11(c) for rejection of plaint must be held to have been maintainable. (iv) The trial court had the jurisdiction to entertain the said application at any stage of the suit (v) Order VII Rule 11(c) being not dependent upon an order passed by the trial court under Section 149 of the Code, the latter shall prevail over the earlier. (vi) The instant case being not the one where additional court fee was required to be filed, the High Court must be correctly and rightly held to have exercised its jurisdiction. 7. When a plaint is presented ordinarily it should be accompanied with the requisite court fees 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 S .....

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..... ossibilia would not reject such a prayer. Payment of court fees furthermore is a matter between the State and the suitor. Indisputably, in the event a plaint is rejected, the defendant would be benefited thereby, but if an objection is to be raised in that behalf or an application is to be entertained by the court at the behest of a defendant for rejection of the plaint in terms of Order VII rule 11(c) of the Code, several aspects of the matter are required to be considered. Once an application under Section 149 is allowed, Order VII Rule 11(c) of Code will have no application. It is for that additional reason, the orders extending the time to deposit deficit court fee should have been challenged. Filing of an application for rejection of plaint in a case of this nature as also having regard to the events which have taken place subsequent to registration of the suit appears to us to be mala fide. If the learned trial judge did not entertain 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 N .....

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..... e rejected outrightly. Before doing so, the applications of the plaintiff under Section 149 of the Code have to be rejected. In Buta Singh (Dead) By LRs. v. Union of India [(1995) 5 SCC 284], it was held: The aid of Section 149 could be taken only when the party was not able to pay court fee in circumstances beyond his control or under unavoidable circumstances and the court would be justified in an appropriate case to exercise the discretionary power under Section 149, after giving due notice to the affected party. But that was not the situation in this case. Under the relevant provisions of the Court Fee Act applicable to appeals filed in the High Court of the Punjab Haryana, the claimants are required to value the appeals in the MOAs and need to pay the required court fee. Thereafter the appeal would be admitted and the notice would go to the respondents. The respondents would be put on notice of the amount, the appellant would be claiming so as to properly 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 t .....

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..... cable of orders. This must be equally true even where the brand of invalidity is plainly visible : for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed put repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects. {See also Baljinder Singh vs. Rattan Singh [2008 (11) SCALE 198]} 13. A contention has been raised that the applications filed by the appellant herein having regard to the decisions of the Madras High Court could not have been entertained which were filed under Section 148 of the Code. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise 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 .....

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..... erefor exercising the jurisdiction thereunder the averments in the plaint are germane and the pleas taken by the defendants in the written statement would be wholly irrelevant at that stage. Therein, a direction to file the written statement was given without deciding the application under Order VII rule 11 of the Code. It was held to be a procedural irregularity touching the exercise of jurisdiction by the trial court. It was, therefore, not a case even on facts where the jurisdiction was exercised after the evidence had been adduced. The observation made must be held to be confined to the fact of that case only and it does not lay down a general proposition of law that even after the evidence are led, an application for rejection of the plaint under Order VII Rule 11(c) is maintainable as by that time the suit has already been registered by the court upon exercising its jurisdiction under Section 149 of the Code. We may, however, notice that in Ram Prakash Gupta v. Rajiv Kumar Gupta Ors.[(2007) 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 plai .....

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..... ed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on 13-7-1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from 8-7-1954. How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not 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 h .....

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..... it did. The proviso to Order 7 Rule 11 CPC is attracted when the time for payment of court fee has been fixed by the court and the court fee is not supplied within the time appointed by the court. In the case at hand, though the plaint as originally filed was not affixed with the requisite court fee stamps, but before the suit was registered, the deficit court fee was supplied. The present one is not a case where the court had fixed the time for payment of requisite stamp paper which was not done within the time fixed and thereafter the plaintiff was called upon to seek an extension of time. Had that been the case, then, under the proviso, the plaintiff would have been called upon to assign and show the availability of any cause of an exceptional nature for delay in supplying the requisite stamp paper within the time fixed by the court. The trial court was also empowered under Section 149 CPC to extend the time. In the present case, the order passed by the trial court accepting the deficit court fee paid on 23-2-2000, thereafter 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 CP .....

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