SUKHPREET KAUR Vs. SHAMSHER SINGH

JUDGEMENT

(1.) The suit which was filed for specific performance of an agreement which was executed on 02.01.2007 provided for a period for performance before 30.06.2007. The suit had been instituted on 16.07.2010, paying the court fee of Rs. 26,650/-. The defendant took a plea that the suit was barred by limitation and the institution was not competent. He wanted the plea to be taken as a preliminary issue and when the trial court did not accede to the defendant, the order was brought on challenge upto this court when this court directed that the issue of adequacy of court fee on the point of limitation will be taken up as a preliminary issue. The plaintiff explained that the last date of limitation which was on 30.06.2010 fell on a holiday and the court had been closed for summer recess upto 15.07.2010 and on the date of its opening on 16.07.2010, the suit had been filed. This, according to him, was an explanation that the suit was in time.

(2.) The defendant still had an objection that the plaintiff had presented the plaint with inadequate stamp and the file which had been put up before the Presiding Officer on 17.07.2010 directed the matter for further orders on 19.07.2010. On 19.07.2010, the Presiding Officer was on leave and the Officer on duty directed to be called on 24.07.2010. The court recorded that the requisite court fee had not been furnished and directed the matter to come up on 28.07.2010. On 28.07.2010 again requisite court fee had not been furnished and the case was adjourned to 31.07.2010. On 31.07.2010, it appears that the plaintiff made good the court fee which was three times more than what was originally paid. The objection was that if the court fee had not been paid and there had been no application in court seeking for extension of time for payment of court fee, the institution cannot be taken as done on the day when the suit was presented and if on the day when the full court fee was paid that should be taken to be the day when the suit was instituted. If 31.07.2010 were to be taken as the date when the suit was instituted, the suit was admittedly barred by limitation as violative of Article 54 of the Limitation Act. The court rejected the plea in defence and found that when the court allowed for the court fee to be received, the same must be taken as legitimizing the delay and the suit cannot taken as barred.

(3.) The learned counsel for the petitioner-defendant relies on several judgments to say that if the court fee had not been adequately fixed on the last day of limitation when the plaint was presented, it cannot be taken a due presentation and the suit will be taken as barred. When I confronted the judgments to the counsel for the respondent, the counsel responded to the plea by only pointing out that Section 149 ought not to be taken as repository for consideration of a point of limitation or for when the suit is to be taken as instituted. Even if the application under Section 149 was not filed, the court allowing the petition to pay the deficit court fee on 31.07.2010 must be taken as having been done on exercise of inherent power under Section 151. He would, therefore, maintain that there was no bar of limitation.