(Prayer: PETITION under Article 227 of The Constitution of India against the order dated 17.7.2020 made in I.A.No.64 of 2017 in O.S.No.11 of 2016 on the file of Principal District Court at Cuddalore.)

1. This civil revision petition has been filed against the fair and decretal order passed in I.A.No.64 of 2017 in O.S.No.11 of 2016 on the file of Principal District Court at Cuddalore (for short, the Court below) wherein the application filed by the petitioner/defendant under Order VII Rule 11(c) of the Civil Procedure Code (CPC) came to be dismissed.

2. Heard the learned counsel for the petitioner and the learned counsel appearing for respondents 2 to 5.

3. This Court has carefully considered the submissions of the learned counsel on either side and perused the materials available on record and more particularly the impugned order.

4. The first respondent (since deceased), who was the plaintiff, filed the said suit seeking for the relief of recovery of money based on a promissory note. The said suit was filed on 07.12.2015 and at the time of filing the said suit, only a sum of Rs.1,001/- was paid as court fees. The papers were returned by the Court below on 22.12.2015 directing the first respondent/plaintiff to pay the deficit court fees to be affixed and represent the papers within two weeks therefrom whereas the plaint was represented on 09.2.2016 along with an application in I.A.No.79 of 2016 seeking to condone the delay of 34 days in representation and it was allowed on 11.2.2016. Pursuant to that the said suit was taken on file.

5. After some time, the petitioner/defendant filed I.A.No.64 of 2017 seeking to reject the plaint on the ground that when the plaint was represented, no application was filed under Section 149 of the CPC seeking for extension of time to pay the deficit court fees and that since the deficit court fees were not paid within the time granted by the Court below and the time was not extended thereafter by the Court below, the plaint would be liable to be rejected under Order VII Rule 11(c) of the CPC.

6. However, the Court below dismissed I.A.No.64 of 2017 by the impugned order on the ground that filing of an application to receive the deficit court fees beyond the time fixed by the Court was not mandatory, that it was optional, that there were no mala fides or contumacy on the side of the first respondent/plaintiff and that there were no grounds to reject the plaint. Aggrieved by that, the above civil revision petition has been filed before this Court.

7. The learned counsel for the petitioner/defendant submitted that the promissory note was dated 09.12.2012; that the limitation period of three years expired on 09.12.2015 whereas the suit was filed on 07.12.2015 by paying a court fee of Rs.1,001/-; that on 22.12.2015, the Court below returned the papers directing the first respondent/plaintiff to affix the deficit court fee of Rs.1,21,340/- within two weeks therefrom; that the period given for paying the deficit court fees came to an end on 05.1.2016 whereas the papers were represented beyond the period of limitation and that therefore, without filing an application under Section 149 of the CPC, issuing notice to the petitioner/defendant and passing a specific order extending the time for payment of the deficit court fees, the suit itself was liable to be rejected.

8. In order to substantiate his submissions, the learned counsel for the petitioner relied upon the following:

                     (i) judgment of the Hon’ble Apex Court in A.Nawab John Vs. V.N.Subramaniyam [reported in 2012 (7) SCC 738];

                     (ii) decision of a learned Single Judge of the Madurai Bench of this Court in S.V.Arjunaraja Vs. P.Vasantha [reported in 2005 (5) CTC 401];

                     (iii) decision of a learned Single Judge of this Court in P.M.Gopalasamy Vs. C.Senpagam [reported in 2007 (5) CTC 283];

                     (iv) decision of a learned Single Judge of this Court in B.S.Santhilal (deceased) & 8 others Vs. J.Samidurai & another [reported in 2010 (2) LW 689];

                     (v) decision of a learned Single Judge of this Court in K.Rajendran Vs. S.Nagarajan [reported in 2012 (5) CTC 857];

                     (vi) decision of a learned Single Judge of this Court in Rafeeque Ahmed Vs. C.Lickmichand & Others [reported in 2014 (1) LW 883];

                     (vii) decision of a learned Single Judge of this Court in N.Ganesan Vs. Vadivel [reported in 2016 (4) MLJ 765];

                     (viii) decision of a learned Single Judge of this Court in K.Dhanavelu Vs. K.S.M.Venugopal [reported in AIR 2016 Madras 196];

                     (ix) judgment of a Division Bench of this Court in K.Natarajan Vs. P.K. Rajasekaran [reported in 2003 (3) LW 803]; and

                     (x) judgment of the Full Bench of the Hon’ble Apex Court in Ganapathy Hegde Vs. Krishnakudva [reported in 2005 (13) SCC 539].

9. Per contra, the learned counsel appearing for respondents 2 to 5, who are none other than the legal heirs of the deceased first respondent/plaintiff, submitted that the said suit was filed on 07.12.2015 well before the expiry of the period of limitation; that during the relevant point of time, at Cuddalore District, sufficient stamp papers were not available; that the plaint was presented before the Court below with the available stamp papers to the value of Rs.1,001/-; that an application was filed on the same day before the Court below requesting for challan in order to pay the deficit court fees of Rs.1,21,340/-; that the Court below granted permission on 22.12.2015; that due to intervening pongal holidays, the payment was made through the challan on 08.2.2016; that the papers were represented with a delay of 34 days; and that I.A.No.79 of 2016 filed seeking to condone the delay in representation was allowed on 11.2.2016 and thereby the said suit was taken on file after payment of the entire court fees.

10. It was further submitted by the learned counsel appearing for respondents 2 to 5 that Section 149 of the CPC deals with only in respect of power to make up deficiency of court fees; that in the case in hand, the stamp papers were not available, which forced the first respondent/plaintiff to make necessary payment through the challan and that by virtue of the order passed in I.A.No.79 of 2016 on 11.2.2016, there was no need for filing a separate application under Section 149 of the CPC.

11. In order to substantiate his submissions, the learned counsel appearing for respondents 2 to 5 relied upon the following;

                     (i) judgment of the Full Bench of the Hon’ble Apex Court in Sri Rathnavarma -raja Vs. Smt.Vimala [reported in AIR 1961 SC 1299];

                     (ii) judgment of the Full Bench of the Hon’ble Apex Court in Mahasay Ganesh Prasad Ray Vs. Narendra Nath Sen [reported in AIR 1953 SC 431];

                     (iii) judgment of the Full Bench of the Hon’ble Apex Court in Pandurang Dhondi Chougule Vs. Maruti Hari Jadhav [reported in AIR 1966 SC 153];

                     (iv) judgment of the Hon’ble Apex Court in Mannan Lal Vs. Mst. Chhotka Bibi (dead) by her LR & others [reported in AIR 1971 SC 1374];

                     (v) judgment of the Hon’ble Apex Court in Smt.Dipo Vs. Wassan Singh & Others [reported in AIR 1983 SC 846];

                     (vi) judgment of the Full Bench of the Hon’ble Apex Court in Mohammad Mahibulla Vs. Seth Chaman Lal (dead) by LRs & Others [reported in AIR 1993 SC 1241]; and

                     (vii) judgment of the Hon’ble Apex Court in Manoharan Vs. Sivarajan [reported in 2014 (4) SCC 163].

12. The gravamen of the grievance expressed on the side of the petitioner was that the limitation for filing the said suit expired on 09.12.2015, that admittedly, the deficit court fees were paid only on 08.2.2016, that the papers were represented on 09.2.2016 and that without filing an application under Section 149 of the CPC and seeking for extension of time, the suit itself would be liable to be rejected under Order VII Rule 7(c) of the CPC.

13. In order to decide the issue, it would be necessary to deal with the decisions relied upon by the learned counsel for the petitioner/defendant.

14. In the decision in A.Nawab John, the Hon’ble Apex Court was dealing with a case where the plaint was filed within limitation, but with deficit court fees and the remaining court fee was paid beyond the period of limitation prescribed for the suit. Ultimately, the Hon’ble Apex Court held as follows:

                     “44. It is well settled that the judicial discretion is required to be exercised in accordance with the settled principles of law. It must not be exercised in a manner to confer an unfair advantage on one of the parties to the litigation. In a case where the plaint is filed within the period of limitation prescribed by law but with deficit court fee and the plaintiff seeks to make good the deficit of the court fee beyond the period of limitation, the court, though has discretion under Section 149 CPC, must scrutinise the explanation offered for the delayed payment of the deficit court fee carefully because exercise of such discretion would certainly have some bearing on the rights and obligations of the defendants or persons claiming through the defendants. (The case on hand is a classic example of such a situation.) It necessarily follows from the above that Section 149 CPC does not confer an absolute right in favour of a plaintiff to pay the court fee as and when it pleases the plaintiff. It only enables a plaintiff to seek the indulgence of the court to permit the payment of court fee at a point of time later than the presentation of the plaint. The exercise of the discretion by the court is conditional upon the satisfaction of the court that the plaintiff offered a legally acceptable explanation for not paying the court fee within the period of limitation.

                     45. On the facts of the case in hand, the High Court recorded its conclusion as follows: (V.N. Subramaniyam case [(2007) 2 LW 363 (Mad)] , LW p. 368, para 16)

                     ‘16. … the Subordinate Judge has erred in allowing IAs Nos. 75 and 76 of 2004 by exercising the discretion without analysing the bona fides of the plaintiffs' case and without giving notice to the defendant.’

                     Such a conclusion was recorded on the basis of the finding: (V.N. Subramaniyam case [(2007) 2 LW 363 (Mad)], LW p. 366, para 8)

                     ‘8. Apart from that sufficient cause was not shown in the two affidavits filed in support of the applications to condone the delay of representation. In IA No. 76 of 2004 the reason given was that due to non-availability of stamp paper, proper court fee could not be paid. In IA No. 75 of 2004 no reason has been stated for such deficit court fee. Even for the delay also the conventional reason of jaundice has been stated and the plaintiffs alleged that they have been taking Siddha treatment for such ailment. Even such affidavits have been filed only by the counsels and not by the parties. But accepting such reasons, the delay in representation as well as the payment of deficit court fee has been accepted by the court below’.”

15. In the decision rendered by a learned Single Judge of this Court in P.M.Gopalasamy, it has been held as follows:

                     “7. The ratio decidendi in the above case was that in the absence of any order being passed under Section 149, C.P.C., granting time for payment or enlargement of time for payment of deficit Court fee, the plaint is not protected with limitation period and the Suit itself is liable to be rejected. Because when a specific provision viz. Section 149, C.P.C. is available, the plaintiff cannot invoke Section merely Section 151, C.P.C. The above dictum laid down by this Court in the above decision, after following the Division Bench judgment of this Court as well some of the decisions of the Apex Court, will squarely applicable to the facts of the present case. Therefore it is not proper on the part of the Trial Court to disobey the same and in fact it has misdirected itself in relying on the decision of this Court K. Natarajan v. P.K. Rajasekaran, 2003 (3) LW 803. Following the above dictum it is clear that the allowing the I.A. No. 983 of 2005 which has been only filed to condone the delay of 69 days in re-presenting the plaint alone, will not amount to condone the delay in payment of deficit Court fee and therefore it will not cure the defect in praying the relief under Section 149, C.P.C. and the deficit Court fee paid later on after the expiry of the limitation period for the Suit will not have the effect as if the Court fee has been paid in the first instance as saved in Section 149, C.P.C. Consequently, the plaint which has the effect of time barred one, is liable to be struck off. The rejection of plaint is a crucial issue to be decided at the first instance, because no one should be allowed to prosecute a frivolous Suit by nullifying the law laid down by this Court. Therefore, the Trial Court is duty bound to decide the issue one way or the other with the available materials on record and in the facts and circumstances of the case, the conclusion arrived by the Trial Court is unwarranted and liable to be set aside.”

16. In the decision of the learned Single Judge of this Court in B.S.Santhilal (deceased) & 8 others, the Court was dealing with a situation where there was a delay in representation, for which, a separate application was filed whereas no application was filed under 149 of the CPC for extension of time for payment of the deficit court fees. In such scenario, it was held as follows:

                     “17. A transaction may be set aside by reason of mistake of law, but not by reason of ignorance of law. Here, he must know the consequences of not paying the court fee in time. He has not represented the plaint in time. He represented the plaint with a delay of 729 days with an application under Section 151 of C.P.C. to condone the delay of 729 days in representing the plaint. But, the revision petitioners must have file an application under Section 149 C.P.C. for extension of time for payment of deficit Court fee. So, he cannot claim that it is a mistake committed by the Court. Hence, the decision relied upon by the learned counsel appearing for the petitioners reported in (2009) 4 MLJ 505, Mansoor and others v. Bagavathi Ammal, has no relevance. Hence, as per the decision reported in (2003) 2 MLJ 305, K. Natarajan v. P.K. Rajasekaran, I am of the view that the revision petitioner has filed the suit on the last date of limitation with the Court fee of Rs. 100/-, even then, without filing any application under Section 149 C.P.C, the Court has granted two weeks time for payment of deficit court fee as well as for rectifying the other defects. But, he has not represented the plaint in time. He represented the plaint with a delay of 729 days along with a petition under Section 151 C.P.C. He had not filed any application under Section 149 C.P.C. to extend the time for payment of court fee. In such circumstances, I do not find any merits in this Civil Revision Petition. So, I am of the view that the rejection order passed by the trial court is correct, fair and proper and it does not warrant interference.”

17. It is relevant to take note of the decision of the learned Single Judge of this Court in K.Dhanavelu wherein it was held as follows:

                     “24. In the light of the aforesaid judgments of the Hon'ble Apex Court and this Court, and in view of the provision of Section 149 of C.P.C., I am of the considered view that the respondent/plaintiff ought to have explained the delay in paying the deficit court fee and the Trial Court ought to have recorded its satisfaction with regard to the same. Admittedly, the respondent/plaintiff has not filed any application to condone the delay in payment of deficit Court fee under section 149 of C.P.C.,. Therefore, the suit is liable to be struck off from the file of the Trial Court.”

18. It is also relevant to take note of the decision of the Division Bench of this Court in K.Natarajan wherein it was held as follows:

                     “21. We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:

                     (1) Section 149 of Code of Civil Procedure is a proviso to Section 4 of the Tamilnadu Court Fees and Suits Valuation Act, 1955.

                     (2) The word ‘document’ employed in Section 149 of Code of Civil Procedure would include plaint also.

                     (3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third day (excluding the date of presentation so also the intervening holidays).

                     (4) If the suit is presented on the last date of limitation affixing less Court fee, than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court fee.

                     (5) In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court fee, shall order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite court fee and the Court is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike.

                     (6) The discretion referred to in Section 149 of Code of Civil Procedure is a judicial discretion and the same has to be exercised in accordance with the well established principles of law.

                     (7) But however, in cases where the time granted to pay the deficit Court fee falls within the period of limitation, the defendant need not be heard.

                     (7A) In case where the plaint is presented well within the period of limitation with deficit court fee and the court returns the plaint to rectify the defect giving some time (2 or 3 weeks), which also falls within the period of limitation, but the plaint is represented paying deficit court fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial court fee (not almost entirety) at the first instance, before condoning the delay in paying the deficit court fee.

                     (8) In cases where part of the time granted to pay the deficit Court fee falls outside the period of limitation and the deficit court fee is paid within the time of limitation (i.e., the plaint is represented with requisite court fee), the court need not wait for the objections of the defendant and the plaint can be straight away numbered.

                     (9) The court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court Fee Act or where he could not pay the required Court fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial court fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in.

                     But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying court fee, awaiting the result of some other litigation, expecting compromise, etc.).

                     (10) If the court had exercised its discretion without issuing notice, then it is open to the defendant to file application under Section 151 of Code of Civil Procedure for proper relief. It will be open to the defendant to file a revision under Article 227 of Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law (as laid down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law.”

19. The judgments that were relied upon on the side of respondents 2 to 5 touched upon the settled law that the court fee is a matter between the plaintiff and the Court, that it should not be questioned by the defendant, that Section 149 of the CPC is a discretionary power, which should be considered leniently unless there are mala fides on the part of the plaintiff and that once the Court accepts the deficit court fees and takes the suit on file, it will date back to the original date of filing of the plaint.

20. The judgment of the Hon’ble Apex Court in A.Nawab John makes it clear that the Court can accept the payment of deficit court fees even beyond the period of limitation prescribed for filing of a suit, if the plaint is otherwise filed within the period of limitation. The rigour of Order VII Rule 11 of the CPC and also Section 4 of the Tamil Nadu Court Fees and Suits Valuation Act are mitigated to some extent by Section 149 of the CPC.

21. The jurisdiction under Section 149 of the CPC is discretionary in nature and the Courts must ensure that it is not exercised in a manner to confer an unfair advantage on one of the parties to the litigation. When the deficit court fee is paid beyond the period of limitation, the Court has to scrutinize the explanation offered for the delayed payment of the deficit court fee while exercising its discretion since it has some bearing on the rights and obligations of the defendant. Section 149 of the CPC does not confer an absolute right in favour of the plaintiff to pay the deficit court fees as and when he pleases.

22. The common thread that runs through all the above judgments is that whenever the deficit court fee is paid, for any reasons, beyond the period of limitation, an application has to be filed under Section 149 of the CPC, notice must be ordered to the defendant and the Court must pass a specific order in that application by either extending the time for payment of the deficit court fees if sufficient reasons are given or reject the same if the Court is not satisfied with the explanation given by the plaintiff.

23. In the case in hand, the Court below returned the plaint by directing payment of the deficit court fees of Rs.1,21,340/- to be paid through the challan and granted two weeks’ time. The two weeks’ time came to an end on 05.1.2016. Admittedly, no application was filed by the plaintiff under Section 149 of the CPC. Filing of this application is mandatory since the court fees have been paid beyond the period of limitation for filing the suit and hence, notice must be ordered to the defendant before extending the time for payment of the deficit court fees.

24. Ultimately, the payment was made through the challan only on 08.2.2016 and the papers were represented on 09.2.2016 with a delay of 34 days. The application was filed in I.A.No.79 of 2016 seeking only to condone the delay in representation and it was allowed on 11.2.2016. While allowing I.A.No.79 of 2016, it does not tantamount to extending the time to pay the court fees under Section 149 of the CPC.

25. This was exactly the issue that was dealt with by a learned Single Judge of this Court in P.M.Gopalasamy and another learned Single Judge of this Court in B.S.Santhilal.

26. The Court below did not properly appreciate this vital legal issue while passing the impugned order and while dismissing the application filed under Order VII Rule 11 of the CPC. The Court below has gone to the extent of rendering a finding that there was no need to file an application under Section 149 of the CPC and that such a non filing of the application was not fatal. This finding rendered by the Court below is against the settled principles of law.

27. In the light of the above discussions, the above civil revision petition is allowed and the impugned order dated 17.7.2020 made in I.A.No.64 of 2017 in O.S.No.11 of 2016 on the file of Principal District Court at Cuddalore is set aside. No costs. Consequently, the connected CMP is closed.