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2009 (7) TMI 1311 - SUPREME COURT

2009 (7) TMI 1311 - SUPREME COURT - TMI - CIVIL APPEAL NO. OF 2009 [Arising out of SLP (Civil) No. 2308 of 2009] - Dated:- 23-7-2009 - S.B. SINHA AND DEEPAK VERMA, JJ. JUDGMENT S.B. SINHA, J : 1. Leave granted. 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 F .....

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y 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 September, 1998. The appellant instituted a suit for recovery of money against the respondents on .....

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r 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 granted eight weeks' time by an order dated 20th November, 1998. Another eight weeks' time was granted by the trial court by an order dated 21st January, 1999. He, however, deposited the .....

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ered appearance upon receipt of summons on 10th January 2001. Indisputably, on the same day, an order of attachment before judgment was also passed with regard to the scheduled property. On 17th February 2003, written statement was filed by the respondent. In the said written statement, no objection was raised with regard to the delay in payment of court fee. No issue in that behalf was framed. Indisputably, thereafter, the respondents remained absent and an ex parte decree came to be passed in .....

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gle 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 an .....

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tion 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 .....

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fect and substance could not have been set aside by reason of the impugned judgment. (ii) The appellant having acted bona fide inasmuch as court fee stamp papers being not available in the treasury, the learned trial court must be held to have exercised its jurisdiction judiciously in terms of Section 149 of the Code. (iii) Although the application for grant of time was filed under Section 148 of the Code of Civil Procedure read with Section 151 thereof, the same ought to have been held to have .....

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ng in view the long line of decisions of Madras High Court whereupon strong reliance has been placed by the High Court, the learned trial court was legally bound to serve a notice upon the respondents before passing of the orders dated 7.10.1998, 8.11.1998, 20.11.1998 and 21.1.1999. (ii) The jurisdiction of the trial court contained in Section 149 of the Code being limited, it was obligatory on its part to assign sufficient and cogent reasons therefor. (iii) Non-grant of opportunity of hearing t .....

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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 .....

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er 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 indicated by either of the sa .....

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, 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." Section 149 raises a legal fiction in terms whereof as and when such deficit court fee is paid, the same would be deemed to have been paid in the first instance. 8. Appellant while .....

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urthermore 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 h .....

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ent 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 .....

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ime. In the aforementioned backdrop of events, we may not have to go into the correctness or otherwise of the decision rendered by the Madras High Court in K. Natarajan vs. P.K. Rajasekaran [(2003) 2 M.L.J. 305], which has been followed in Ramiah & Anr. vs. R. Palaniappan & Ors. [(2007) 5 MLJ 559], S.V. Arjunaraja vs.P. Vasantha [2005 (5) CTC 401] and V.N. Subramaniyam vs. A. Nawab John & Ors. [(2007) 1 MLJ 669]. 10. We have, however, serious reservations as to whether the civil cour .....

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s in support of their orders. Had the validity and/or legality of those orders been challenged before an appropriate court, it would have been possible by the plaintiffs to contend that the defendants had waived their right by their subsequent conduct and they would be deemed to have accepted the same. Even on later occasion, the courts would assign reasons upon satisfying itself once over again. If an order has been passed without hearing the one side, he may be heard but by reason thereof, the .....

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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 pro .....

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ell 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 purpo .....

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rors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows: (1) All official decisions are presumed to be valid until set aside of otherwise held to be invalid by a court of competent jurisdiction. Similarly, Wade and Forsyth in Administrative Law, Seventh edition -1994, have stated the la .....

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nd to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable 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 B .....

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e 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 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 inv .....

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ower 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, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the A .....

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es not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." 14. An application for rejection of the plaint was filed only in the year 2008. Evidently, that was not the stage for entertaining the application. Order VII rule 11(c) of the Code could not have been invoked at that point of time. 15. Mr. Venugopal, however, would rely upon a decision of this Court in Saleem Bhai & Ors., v. State of Maharashtra & Ors. [(2003) 1 SCC .....

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ation 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 .....

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lication 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 commi .....

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stage. It may be so, but it is well known that the appeal is continuation of the suit. Yet again in Mahanth Ram Das v. Ganga Das, [AIR 1961 SC 882), this Court held:- "5. The case is an unfortunate and unusual one. The application for extension of time was made before the time fixed by the High Court for payment of deficit court fee had actually run out. That application appears not to have been considered at all, in view of the peremptory order which had been passed earlier by the Divisio .....

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r under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed 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 aft .....

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er 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 .....

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ve 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.& .....

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when the memorandum of appeal was filed alike for the purpose of Limitation Act and the Court Fees Act and the appeal must be treated as one pending on 9th November 1962 and as such unaffected by Section 3 of the U.P. Act of 1952. In Wajid Ali v. Isar Bano, Section 149 was interpreted as a proviso to Section 4 of the Court Fees Act in order to avoid contradiction between the two sections. The court was, however, careful to lay down that discretion had to be exercised in allowing deficiency of c .....

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yment 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 .....

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000 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 Ke .....

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