REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2009

[Arising out of SLP (Civil) No. 2308 of 2009]

P.K. PALANISAMY …APPELLANT

Versus

N. ARUMUGHAM & ANR. …RESPONDENTS

J U D G M E N T

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

05

th

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 Rs.5,90,000/- to

the respondent No.1 on 29

th

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 2

nd

October, 1995.

The respondent No. 1 issued two cheques for a sum of Rs.1,00,000/-

each on 8

th

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

29

th

August, 1998, which was received by them on 2

nd

September, 1998.

The appellant instituted a suit for recovery of money against the

respondents on or about 4

th

October, 1998 before the Subordinate Judge,

2

Salem. The plaint was presented on 5

th

October, 1998 as the 2

nd

, 3

rd

and 4

th

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 8

th

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 20

th

November,

1998. Another eight weeks’ time was granted by the trial court by an order

dated 21

st

January, 1999. He, however, deposited the deficit court fee stamp

on 17

th

February, 1999, which was accepted by the learned Subordinate

Judge.

Indisputably, an application marked as I.A. No. 838 of 2000 under

Section 151 of the Code to condone the delay of 272 days in representing the

plaint filed by the appellant was allowed by the trial court by an order dated

3

2

nd

November, 2000. The plaint was represented with the application for

attachment before judgment and an application for condonation of delay in

re-filing.

The respondents entered appearance upon receipt of summons on 10

th

January 2001. Indisputably, on the same day, an order of attachment before

judgment was also passed with regard to the scheduled property.

On 17

th

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 favour of the appellant on 29

th

September,

2004 by the trial court.

An application marked as I.A. No. 1138 of 2005 filed on behalf of the

respondents after a gap of 289 days to set aside the ex parte decree was

allowed by the trial court with a condition to pay Rs.1000/- as costs.

4

Feeling 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 8

th

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 Rs. 3,00,000/- by order

dated 8

th

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 4

th

January

2008 seeking for rejection of the plaint urging for the first time that the suit

presented on 5

th

October 1998 was barred by limitation as the extension of

time granted by the trial court under Section 149 read with Section 151 of

5

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 5

th

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 orders dated 7.10.1998,

8.11.1998, 20.11.1998 and 21.1.1999 having not been

6

questioned, the same in effect 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 been

filed under Section 149 of the Code.

(iv)The respondents having not raised any issue with regard to

delayed filing of the court fee stamp in their written statement

or thereafter, the application filed by them purported to be

under Order VII Rule 11(c) of the Code at the stage when the

evidence had been adduced by the parties ought not to have

been entertained.

7

6.Mr. Krishnan Venugopal, learned Senior Counsel appearing on behalf

of the respondents, on the other hand, would urge:

(i)Keeping 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 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

8

(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 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

9

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 said Schedules as the proper fee for

such document.”

It, however, does not mean that whenever a plaint is presented with

deficit court fee, the same has to be rejected outrightly. Section 149 of the

Code provides for the court’s power to extend the period. It reads as under:

“149. Power to make up deficiency of Court-

fees.- Where the whole or any part of any fee

prescribed for any document by the law for the

time being in force relating to court-fees 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 fee

had been paid in the first instance.”

10

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 presenting the plaint inter alia contended that

sufficient court fee stamps were not available 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.

Once an application under Section 149 is allowed, Order VII Rule

11(c) of Code will have no application.

11

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 7

th

October, 1998,

8

th

November 1998, 20

th

November, 1998 and 21

st

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 10

th

January 2001 to 4

th

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 4

th

October 1998 was entertained

12

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 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 court

could hear a defendant before registering a plaint. The Code does not

envisage such a situation. When a suit is filed, the Civil Court is bound by

the procedures laid down in the Code. The defendant upon appearing,

however, in certain situations, may question the orders passed by the Civil

Court at a later stage.

11.We would assume that the respondents were entitled to a notice before

registration of plaint under Section 149 of the Code. Indisputably, the courts

were required to assign reasons in support of their orders. Had the validity

13

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 plaint would not be 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.

14

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 a Court of competent

jurisdiction. Until its validity is challenged,

its legality is preserved.”

In the Judicial Review of Administrative Action

De Smith, Wolf and Jowell, 1995 edition, at pages

259-260 the law is stated, thus:

15

The erosion of the distinction between

jurisdictional errors 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 law

thus at pages 341-342:

...every unlawful administrative act,

however invalid, is merely voidable. But this

is no more than the truism that in most

situations the only way to resist unlawful

action is by recourse to the law. In a well-

known passage Lord Radcliffe said:

An order, even if not made in good faith, is

still an act capable of legal consequences. It

bears no brand of invalidity upon its

forehead. Unless the necessary proceedings

are taken at law to establish the cause of

invalidity and 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

16

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 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.

17

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,

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

Army Act. Therefore, the order of discharge of the

appellant from the army service cannot be vitiated

on this sole ground as contended by the Learned

Counsel for the appellant.”

In N. Mani v. Sangeetha Theatres & Ors. [(2004) 12 SCC 278], it is

stated:

“9.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.”

18

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 557].

We would assume that the said decision lays down the law correctly.

But we may notice that therein the court was concerned with an application

filed under Order VII Rule 11(a) and (d) of the Code to hold that the therefor

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

19

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

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?

20

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 contention in that behalf had been raised at

the appellate 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 Division

Bench hearing the appeal, mainly because on the

date of the hearing of the petition for extension of

time, the period had expired. The short question is

whether the High Court, in the circumstances of

the case, was powerless to enlarge the time, even

though it had peremptorily fixed the period for

payment. If the Court had considered the

application and rejected it on merits, other

considerations might have arisen; but the High

Court in the order quoted, went by the letter of the

original order under which time for payment had

been fixed. Section 148 of the Code, in terms,

allows extension of time, even if the original

21

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 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 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

22

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) by LRs. B. Sharda

Shankar & Ors. [ (1970) 1 SCC 769], it was held:

“17. On a parity of reasoning it is difficult to see

why if a memorandum of appeal insufficiently

stamped is not to be rejected as barred under the

Limitation Act, why a different conclusion should

flow as regards compliance with the Court Fees Act

in view of the express provisions of Section 149 of

the Code. In our opinion Section 149 will cure the

defect as from the date 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 court fees to be made good

but once it was done a document was to be deemed

to have been presented and received on the date on

which it was originally filed. This was a case of a

plaint.”

23

The said dicta was reiterated by a three judge bench of this Court in

Ganapathy Hegde v. Krishnakudva, [(2005) 13 SCC 539] in the following

words :-

“5. In our opinion, the High Court was not right

in forming the opinion which 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 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.”

24

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 paid in the first

instance. Section 4 of the Court Fees Act bars the

court from receiving the plaint if it does not bear

the proper court fee. Section 149 acts as an

exception to the said bar, and enables the court to

permit the plaintiff to pay the deficit court fee at a

stage subsequent to the filing of the suit and

provides that such payment, if permitted by the

court, shall have the same effect as if it had been

paid in the first instance. Interpreting Section 149,

this Court in Mannan Lal v. Chhotaka Bibi held

that Section 149 CPC mitigates the rigour of

Section 4 of the CF Act, and the courts should

harmonise the provisions of the CF Act and CPC

by reading Section 149 as a proviso to Section 4 of

the CF Act, and allowing the deficit to be made

good within the period to be fixed by it. This Court

further held that if the deficit is made good, no

objection could be raised on the ground of bar of

limitation, as Section 149 specifically provides that

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the document is to have validity with retrospective

effect.”

Mr. Venugopal would, however, contend that those observations in

that case were made holding that the conduct on the part of the complainant

was not bona fide.

17.For the reasons aforementioned, the impugned judgment cannot be

sustained. It is set aside accordingly. The appeal is allowed. However, in

the facts and circumstances of the case, there shall be no order as to costs.

………………………….J.

[S.B. Sinha]

..…………………………J.

[Deepak Verma]

New Delhi;

July 23, 2009

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