P K PALANISAMY Vs. N ARUMUGHAM

JUDGEMENT

(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 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 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 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 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 deficit court fee stamp on 17th 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 2nd 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 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 favour of the appellant on 29th September, 2004 by the trial court. An application marked as LA. 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. 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 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 Rs. 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 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 refiling 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.