KRISHNA KUMAR Vs. ASHWANI KUMAR

JUDGEMENT

(1.) Plaintiff-respondent filed a suit against the petitioner and four others, for possession by way of specific performance of a contract directing the defendants or their authorised agents to execute sale deed/transfer papers in his favour pertaining to plot No. 1306, Sector.4, Panchkula on the basis of agreement dated 31.7.1987 and for permanent injunction restraining the defendants or their authorised agents from, alienating the said plot. The suit appears to have been filed on 31.7.1990 i.e. on the last day of limitation which is three years for such suits. In the suit. it was averred that value for purposes of jurisdiction is Rs. 55,000/- upon which Court fee of Rs. 6570/- is payable. But the suit was filed only by fixing a Court fee of Rs. 2/-. Since the plaint was insufficiently stamped. the plaintiff alongwith the suit also moved an application dated 31.7.1990 seeking time to deposit the Court fee and stamps. The con- rents of the said application are as under :

(2.) Learned Counsel for the petitioner submitted that admittedly, the suit was filed on 31.7.1990 and even if the stand to the plaintiff that the suit was being filed by affixing a Court fee of Rs. 2/- only as the stamp paper could not be purchased due to shortage of time because of closure of "the Treasury, it taken to be correct, it was the duty of the plaintiff to supply the requisite Court fee/ stamp paper immediately on the next date of hearing or at the most within the time allowed by the Court and on his failure to do so, the plaint was liable to be rejected. Learned Counsel further submitted that the plaintiff "was granted at least fifteen opportunities i.e. from 31.7.1990 to 4.4.1991 to pay the Court fee but he did not file the Court fee and thus he intentionally failed to comply with the orders of the Court. Learned counsel also submitted that in view of the interim orders passed by the trial Court from 31-7.1990 to 4.4.1991, at the most it can be said that the plaintiff was granted time to file the requisite stamp papers upto 4.4.1991. It was further submitted by the learned counsel for the petitioner that a perusal of the interim order dated 4.4.1991 would clearly go to show that the Court had not fixed any further time for filing the requisite stamp paper by the plaintiff and the requisite stamp-paper was supplied by the plaintiff on 8.4.1991 in the absence of any time being granted/fixed by the Court.'It is also submitted that since the petitioner had moved an application on 4.4.1991 for rejection of the plaint and on being alarmed by the adverse consequences to be followed in view of prayer made by the petitioner, the plaintiff hurriedly filed the requisite stamp paper even before any order could be passed on petitioners application. To buttress the contentions, learned Counsel referred to the provisions of Order 7, Rule 11 of the Code of Civil Procedure and -further contended that time for supplying the deficient stamp paper could only be extended/fixed by the Court by recording reasons therefore and after being satisfied that the plaintiff was prevented by any cause of exceptional nature from correcting the valuation or supplying the requisite stamp papers and that refusal to extend such time would cause grave injustice to him. It was thus lastly submitted that the relevant provisions of Order 7, Rule 11 of the Code which are mandatory in nature, have been totally ignored by the trial Court and therefore, the trial court has committed material irregularity in allowing the plaintiff to file the requisite stamp paper. Learned Counsel for the peti- tioner also placed reliance on two judgments in support of- his latter contention. Jabar Singh (Died) & Ors. v. Shadi (Died) & Ors., and S. Wajid All v. Mt. 7sar Bono Urflsar Fatma.

(3.) After hearing learned Counsel for the petitioner and considering the facts and circumstances brought before me, I am of the opinion that this revision petition deserves to succeed. First of all it is necessary to notice the relevant 'provisions relating to -rejection of plaint :