K RAJENDRAN Vs. S NAGARAJAN

JUDGEMENT

(1.) THIS Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioner, who is the plaintiff in a suit for recovery of money based on a promissory note. He is aggrieved against the order passed by the Court below in I.A.No.354 of 2007 dated 15.10.2009 wherein and whereby the application filed under Sections 148 and 151 CPC was dismissed.

(2.) THE short facts culled out from the pleadings are as follows:- The respondent herein borrowed a sum of Rs.75,000/- from the petitioner on 17.6.2004 and executed a promissory note on the same day promising to repay the said sum with interest on demand by the petitioner. As the respondent did not pay the said sum, in spite of a notice issued by the petitioner on 12.11.2005, the petitioner came forward with the above said suit and filed the same on the file of the Principal Sub-Court, Gobichettipalayam on 10.4.2007. While filing the said suit, the petitioner has paid a sum of Rs.7,523/- towards the Court fee. As the Court below has found that the Court fee paid is deficient, the plaint presented by the petitioner was returned on 16.4.2007 by granting two weeks' time for payment of the deficit court fee. Admittedly, the petitioner did not pay the deficit court fee within the time stipulated by the court below and however re-presented the plaint with full Court fee only on 28.9.2007 along with an application filed under Sections 148 and 151 CPC seeking for condonation of a delay of 150 days in re-presenting the plaint. The said application filed by the petitioner was numbered as I.A.No. 354 of 2007. The petitioner filed an affidavit in support of the said application in I.A.No. 354 of 2007, wherein he has stated that he could not re-present the plaint by paying the deficit Court fee within the time granted by the Court as he was bed ridden for five months.

(3.) THE learned counsel appearing for the petitioner would submit that the petitioner was reasonably prevented from complying with the return of the plaint and to pay the deficit court fee within the time stipulated by the court below as he was bed ridden for a continuous period of five months. Consequently, the petitioner filed an application under Sections 148 and 151 CPC seeking for condonation of the delay in re-presenting the plaint with payment of the deficit court fee. Therefore, according to the learned counsel for the petitioner, the Court has got ample power either under Section 148 or under Section 149 of CPC to condone the delay and accept the deficit court fee paid by the petitioner. The learned counsel also submitted that even assuming that the application filed by the petitioner should have been made under Section 149 of CPC and not under Section 148 of CPC, mere wrong quoting of the provision of law would not disentitle the petitioner from seeking the relief. In support of such contention, the learned counsel appearing for the petitioner relied on the decision of this court reported in 2000 (3) MLJ 132 ( Pakkiammal Vs. Anaiappan).