MABLE Vs. DOLORES

JUDGEMENT

(1.) This Civil Revision Petition has come up before us on a reference being made by a learned single Judge, in view of the doubt he felt about the ambit of the decision rendered by another learned single Judge reported in Varghese v. Devi Academy ( 1999 (1) KLT 440 ).

(2.) The plaintiff in a suit filed in the Subordinate Judge's Court of Cochin is the petitioner in this Civil Revision Petition. She originally filed the suit in the Munsiff's Court, Cochin for recovery of possession of a building from the defendants on the strength of her title and for consequential reliefs. On objection regarding jurisdiction based on valuation being taken and after an adjudication, the Munsiff's Court returned the plaint to the plaintiff for presentation to the proper court. Thereafter, the plaintiff amended the valuation and presented the plaint before the Subordinate Judge's Court. In the light of S.4A of the Kerala Court Fees and Suits Valuation Act, the plaintiff paid 1/10th of the amount of fee chargeable as court fee under the Kerala Court Fees and Suits Valuation Act. The defendants filed a written statement resisting the suit. Based on the pleadings, the court ultimately framed issues in the suit on 13.1.1995. In terms of S.4A of the Kerala Court Fees and Suits Valuation Act, the balance 9/10 court fee payable on the plaint, as per valuation, had to be paid within 15 days of 13.1.1995, the date on which the issues were framed. It is said that the Trial Court posted the suit on 17.2.1995 for payment of the balance court fee. How the court could do this in the face of the specific provision in S.4A of the Court Fees and Suits Valuation Act is not clear. For, under the section, the balance court fee had to be paid within 15 days of framing of issues and the court itself had the power to extend time beyond the 15 days only by such a period as not to exceed 30 days from the date of settlement of issues. In other words, the Trial Court on the terms of S.4A of the Court Fees and Suits Valuation Act, could not have extended the time for payment of balance court fee beyond 30 days of the framing of issues and that too only for sufficient reasons to be recorded in writing. It is no doubt true that it has been held by this Court that the power available under S.149 of the Code of Civil Procedure would still be available with the Court to extend the time. But, when the court, after framing the issues posts the case for payment of court fee, it has necessarily to fix a date, which can only be the last date of the 15 days, as contemplated in S.4A of the Court Fees and Suits Valuation Act and it cannot certainly be beyond 30 days. But probably what the court here did was not to fix a date for payment, but only to post the suit to 17.2.95 to verify whether the court fee has been paid in time.

(3.) Whatever it be, the balance court fee was not paid by the plaintiff either within 15 days or within 30 days. In fact it was never paid. But the court did not notice it or take any action based on it. The suit was posted on a number of occasions. It was included in the list for trial. Evidence was commenced. Then it was discovered that the balance court fee had not been paid. On 9.3.1995 it was represented on behalf of the plaintiff that the balance court fee was paid. The Court accepted that submission. Only on 27.11.1996 the court realised that the submission that was made on 9.3.1995 that the balance court fee was paid was not a correct one and in fact no balance court fee had been paid. The Court therefore rejected the plaint under O.7 R.11(c) of the Code of Civil Procedure.