LAWS(MAD)-2011-4-392

P HARISUDHA Vs. K PALANISAMY

Decided On April 06, 2011
P.HARISUDHA Appellant
V/S
K.PALANISAMY Respondents

JUDGEMENT

(1.) THIS Civil Revision Petition has been preferred under Article 227 of the Constitution of India against the order dated 15.10.2007 passed in I.A. No.568 of 2007 in O.S. No.353 of 2006 on the file of the Additional District Judge/Fast Track Court No.I, Coimbatore.

(2.) IT is seen that a suit was filed by the respondent herein as plaintiff against the petitioners who are defendants in the suit, seeking specific performance of contract and for an alternative relief of refund of the advance amount paid by him with interest and cost.

(3.) PER contra, Mr. N. Damodharan, learned counsel appearing for the respondent/plaintiff submitted that the aforesaid decisions are not applicable to the facts and circumstances of the case. According to the learned counsel appearing for the respondent/plaintiff, there is no delay in the payment of deficit court fee. The plaint was filed on 26.04.2006. Subsequently it was returned on 28.04.2006 and then it was re-presented on 23.06.2006. The court below by order dated 28.06.2006 directed the respondent/plaintiff to pay additional court fee of Rs.1,000/- and that was complied with. According to the learned counsel appearing for the respondent/plaintiff, additional court fee was paid on 13.07.2006. After verifying the same, the suit was numbered on 17.07.2006. In support of his contention, learned counsel appearing for the respondent/plaintiff relied on the following decisions: (1) 2007 (3) CTC 144 V.N. Subramaniyam vs A. Nawab John and 5 others. Learned Single Judge of this Court (S. ASHOK KUMAR,J.) has held that "revision under Article 227 is maintainable, when there is a failure on the part of the court below to exercise judicial discretion in a manner known to law, as there was no invocation of the specific provision of Section 149 CPC and the consequential prayer to condone the delay in payment of the deficit court fee while representing the plaint and accordingly this Court held that the Subordinate Judge has erred in allowing the Interlocutory Application filed therein by exercising the discretion without analysing the bonafides of the plaintiffs therein". (2) 2005 (5) CTC 401 (S.V. Arjunaraja vs P. Vasantha). Learned Single Judge of this Court (M. THANIKACHALAM,J.) has held that the revision in the absence of specific application invoking Section 149, CPC. and in the absence of any order passed by Court granting time for payment or enlargement, the plaintiff is not protected and suit is liable to be rejected.