DEVARAJ Vs. DHANALAKSHMI

JUDGEMENT

(1.) INVEIGHING the order dated 07.07.2008, passed by the Principal Subordinate Judge, Erode, in I.A.No.526 of 2008 in O.S.No.551 of 2001, this civil revision petition is focussed.

(2.) DESPITE printing the names concerned, none appeared.

(3.) AT this juncture, I would like to refer to the decision of the Division Bench of this Court reported in 2003(3) LW 803 [K.Natarajan vs. P.K.Rajasekaran]. Certain excerpts from it would run thus:".14. Of course, where the time granted by the Court to pay the deficit court fee falls within the period of limitation to file the suit, no notice need be given to the defendant/opposite party. It is desirable that whenever a plaint is presented, the same is verified and returned at least on the third day (excluding the holidays), if necessary pointing out the defects.21. We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:(1) Section 149 of Code of Civil Procedure is a proviso to Section 4 of the Tamil Nadu Court Fees and Suits Valuation Act 1955.(2) The words 'document' employed in Section 149 of Code of Civil Procedure would include the plaint also.(3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third days (excluding the date of presentation so also the intervening holidays).(4) If the suit is presented on the last date of limitation affixing less Court fee, than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court fee.(5) In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court fee, shall order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite court fee and the Court is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike.(6) The discretion referred to in Section 149 of Code of Civil Procedure is a judicial discretion and the same has to be exercised in accordance with the well established principles of law.(7) But however, in cases where the time granted to pay the deficit Court fee falls within the period of limitation, the defendant need not be heard.(7A) In case where the plaint is presented well within the period of limitation with deficit court fee and the court returns the plaint to rectify the defect giving some time (2 or 3 weeks), which also falls within the period of limitation, but the plaint is represented paying deficit court fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial court fee (not almost entirely) at the first instance, before condoning the delay in paying the deficit court fee.(8) In cases where part of the time granted to pay the deficit Court fee falls outside the period of limitation and the deficit court fee is paid within the time of limitation (i.e., the plaint is re-presented with requisite court fee), the court need not wait for the objections of the defendant and the plaint can be straight away numbered. (9) The court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court Fee Act or where he could not pay the required Court fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial court fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in. But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying court fee, awaiting the result of some other litigation, expecting compromise, etc.). (10) If the court had exercised its discretion without issuing notice, then it is open to the defendant to file application under Section 151 of Code of Civil Procedure for proper relief. It will be open to the defendant to file a revision under Article 227 of Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law (as laid down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law."(emphasis supplied)It is therefore clear that in the factual matrix of this case as found enunciated, the plaint was re-presented well before the limitation period and in such a case, the Court was not enjoined to issue notice to the proposed defendant. The main contention of the revision petitioner that the lower Court should have issued notice to the revision petitioner/defendant before numbering the suit even though such payment of deficit court fee is within limitation, is not legally tenable.