BUVANESWARI GRAPH PAPER Vs. NATIONAL SMALL INDUSTRIES

JUDGEMENT

(1.) Both the above Civil Revision Petitions are filed under Section 115 of the Code of Civil Procedure praying to set aside the fair and decretal orders both dated 22.11.2000 respectively made in C.M.P.Nos.448 and 449 of 2000 in A.S.S.R.No.10966 of 2000 by the learned Principal Judge, City Civil Court, Chennai.

(2.) On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the respondent herein has filed the suit in O.S.No.9472 of 1995 before the IV Assistant City Civil Court, Chennai and since the said suit got dismissed, on 28.7.1999, they have preferred an appeal before the Court of Principal Judge, City Civil Court, Chennai. It further comes to be known that since there was delay in preferring the appeal, the respondent herein has filed two petitions, the first one in C.M.P.No.448 of 2000 under Section 5 of the Limitation Act praying to condone the delay of three days in preferring the appeal and the second petition in C.M.P.No.449 of 2000 under Section 149 r/w.151 CPC praying to condone the delay of four days in re-presenting the appeal papers and since the Court below has allowed both the petitions, thereby respectively condoning the delay of three days in filing the appeal with a cost of Rs.100/= to each of the respondents in C.M.P.No.448 of 2000 and condoning the delay in paying deficit court fee of Rs.15,997/=, the respondents therein have come forward to file both the above civil revision petitions on grounds such as that there was not a delay of three days in filing the appeal but more than 45 days; that the appeal memorandum was presented on 10.3.2000 with a Court fee of Rs.50/= only even though the value of the appeal was more than Rs.2.5 lakhs and in such circumstances, the presentation of the appeal on 10.3.2000 itself was void and the Court cannot take note of the said presentation as a valid presentation to compute the delay as three days in filing the appeal.

(3.) The petitioners would further submit that the learned Judge failed to see that no reason had been adduced sufficient enough to enable the Court to grant time for payment of deficit Court fee under Section 149 C.P.C.; that the learned Judge did not consider the fact that the respondent herein had filed an application to condone the delay in payment of deficit court fee of Rs.15,997/= in I.A.No.449 of 2000 under Section 149 CPC only when the papers were re-presented on 21.4.2000; that the learned Judge had not even taken note of the averments in the affidavit filed in support of I.A.No.448 of 2000 wherein the respondent had not filed any affidavit but it was the junior counsel who had sworn to the affidavit under Section 149 CPC on the sole ground the application in I.A.No.448 of 2000 should have been rejected; that the learned Judge should have rejected the application in I.A.No.448 of 2000 as the affidavit merely stated that the respondent failed to pay the necessary expenses to the advocate for the purchase of the stamps and hence the court fee was not paid on 10.3.2000 and this clearly proves the latches and recalcitrant attitude of the respondent and hence is not entitled to any indulgence to the discretionary relief of extension of time for payment of deficit court fee under Section 149 CPC; that the learned Judge failed to note that the presentation of the appeal would be proper and valid only on the payment of deficit court fee on the memorandum of appeal and until such time, there is no appeal pending on the file of the court in the eye of law and only after the payment of court fee on the memorandum, the delay from the date of judgment till the date of payment of deficit court fee has to be reckoned in order to arrive at the actual number of days of delay in filing the appeal.