N GANESAN Vs. VADIVEL

JUDGEMENT

(1.) Heard the arguments of M/s.R.Sripriya, learned counsel appearing on behalf of the Revision Petitioner and Mr.V.R.Anna Gandhi, learned counsel appearing on behalf of the Respondent.

(2.) It is the submission of Ms.R.Sripriya, learned counsel for the Petitioner, that the original plaintiff in O.S.No.102 of 2011 has filed the suit for specific performance of an alleged reconveyance agreement dated 26.11.2002 before the District Munsif Court, Palacode, on 24.11.2005 without paying the proper Court fees and without any Petition to take leave of the Court for payment of the deficit Court Fee under Section 149 of C.P.C and so the Court has returned the Plaint for want of payment of deficit Court fee. It was further submitted by the learned counsel that even after the Plaint was returned by the Court, the Plaintiff did not pay the deficit Court Fee and resubmit the same within the stipulated time fixed by the Court and after a long period of 4 years, on 19.11.2009, the Plaintiff resubmitted the Plaint without paying the deficit Court Fee but with a Petition to condone the delay of 1330 days for resubmission and it has been submitted that the Petition was filed wihout giving any notice to the Revision Petitioner and was returned on 09.12.2009 for want of defects to be rectified. However, the plaintiff after a delay of another 523 days, resubmitted the Plaint along with I.A.No.463 of 2011 to condone the delay in resubmission and the same was allowed by the District Munsif Court without giving any notice to the Revision Petitioner and thereafter the suit was numbered as O.S.No.102 of 2011. Hence, the Revision Petitioner filed in I.A.No.161 of 2012 in O.S.No.102 of 2011 under Order VII Rule 11 r/w Section 151 of C.P.C for rejection of Plaint. The main submissions that were advanced by the Revision Petitioner in the said Application were on the ground of limitation and non-payment of proper Court Fee, the Plaint was liable to be rejected. The Trial Court by order dated 28.03.2012 dismissed the said Application and aggrieved by which, the present Civil Revision Petition has been filed.

(3.) The primary ground of attack of the Revision Petitioner is that since time was the essence of the agreement, the Suit ought to have been filed within three years from the date of the agreement and in the instant case, the same has not been properly complied with for the reason that in the first instance itself, the Plaint has been presented without proper Court Fee and though the same was returned, the Plaint was represented again without proper Court Fee after a long delay of four years and the same also having been returned, the Plaintiff has again after a long lapse of 523 days, resubmitted the Plaint with a petition to condone the delay in representation of the plaint only during which the Revision Petitioner was never heard nor given notice.