A. NAWAB JOHN & ORS. versus V.N. SUBRAMANIYAM

28. Therefore, from the language of Section 149 CPC it G follows that when a plaint is presented to a Court without the payment of appropriate court fee payable thereon, undoubtedly the Court has the authority to call upon the plaintiff to make payment of the necessary court fee. Such an authority of the Court can be exercised at any stage of the suit. It, therefore, appears to us that any amount of lapse of time does not fetter the authority of the Court to direct the payment of such deficit court fee. As a logical corollary, even the plaintiff cannot be said to be barred from paying the deficit court fee because of the lapse of time. c

29. This Court in AIR 1971 SC 1374- Mannan Lal v. Mst. Chhotka Bibi (dead) by Lrs. & Ors. interpreting Sec. 149 CPC held:- "The above section therefore mitigates the rigour of Section 4 of the Court Fees Act and it is for the Court in its discretion to allow a person who has filed a memorandum of appeal with deficient court-fee to make good the deficiency and the making good of such deficiency cures the defect in the memorandum not from the time when it is made but from the time when it was first presented in Court. In our view in considering the question as to the maintainability of an appeal when the Court fee paid was insufficient to start with but the deficiency is made good later on the provisions of the Court Fees Act and the Code of Civil Procedure have to be read together to form a harmonious whole and no effect should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other. It was further held at para 14:- ''There can in our opinion be no doubt that Sec.4 of . the Court Fees Act is not the last word on the subject and the Court must consider the provisions of both the Act and the Code to harmonise the two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it. If the A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 399 [J. CHELAMESWAR, J.] deficiency is made good no possible objection can be A raised on the ground of the bar of limitation: the memorandum of appeal must be treated as one filed within the period fixed by the Limitation Act subject to any express provision to the contrary in that Act and the appeal must be treated as pending from the date when the memorandum of appeal was presented in court. In our view it must be treated as pending from the date of presentation not only for the purpose of limitation but also for the purpose of sufficiency as to court-fee under Section 149 of the Code." c [Emphasis supplied]

30. It was a case where by an Act of the U.P. Legislature the appellate jurisdiction provided under the Letters Patent of Her Majesty dated 17th March, 1866 was abolished. However, Sec.3 of the U.P. Act saved the pending Letters Patent appeals. The question before this Court was whether Letters Patent appeal presented to the Allahabad High Court prior to the commencement of the Abolition Act but without affixing appropriate court fees stamp can be said to be a pending appeal. This Court on a consideration of the relevant provisions of the law and also the decisions of the Madras High Court in Gavaranga Sahu Vs. Batakrishna Patro, (1909) ILR 32 Mad 305 (FB) and Faizul/ah Vs. Mauladad, AIR 1929 PC 147 reached the conclusion that such an appeal was a 'pending appeal' for the purpose of the Abolition Act.

31. We may mention here that the subject matter of dispute in the above mentioned case was a Letters Patent Appeal. However, the Full Bench decision of the Madras High Court, quoted with approval by this Court (supra), dealt with the G question whether the payment of deficit in court fee beyond the period of limitation prescribed for filing the suit would retrospectively render the plaint (originally presented within the period of limitation but with deficit court fee) a validly presented plaint: c "The argument advanced in that case before the Court appears to have been to the effect that a plaint which was not sufficiently stamped within the period of limitation was not a valid plaint at all. In the -order of reference the law on the subject was set forth in some detail and the learned referring Judge opined that an insufficiently stamped plaint did not become a new plaint when the deficiency was supplied. The learned Judges of the Full Bench fully agreed with the view taken in the order of reference and with the reasons upon which it was based and merely added that Section 149 of the Civil Procedure Code of 1908 was in accordance with this view." In substance, the Full Bench Madras High Court held that such a plaint would be a validly presented plaint. This Court approved the said decision.

32. The question whether there is a deficit of court fee paid with respect to a plaint depends on two factors: (1) the valuation of the suit, and (2) the determination of the appropriate court fee payable thereupon. There can occur an error (either. advertently or otherwise), on either of the abovementioned counts. Under Section 12(1) of the Tamil Nadu Act (which is relevant for our purpose), primarily it is the obligation of the Court to examine all the relevant material and determine whether the proper fee payable on the plaint is paid or not. As already noticed, under Section 12(2)2 of the Tamil Nadu Act, 2. 12 Decision as to proper fee in other Courts. (2) Any defendant may, by his written Statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that the subject- matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence affecting such defendant, on the merits of the claim. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit. A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM [J. CHELAMESWAR, J.] the defendant can also raise objections to either the valuation of the suit or the determination of the court fee payable. The determination of the accuracy of the valuation of the suit and/ or the appropriate court fee payable thereon, in either of the contingencies mentioned above, is required to be made by the Court. If the Court reaches the conclusion that the appropriate court fee is not paid, the consequences stipulated in Section 12(2) to (4) should follow.

33. If such conclusion is reached by the trial Court, the trial Court is mandated to reject the plaint if the plaintiff fails to pay the necessary court fee even after being called upon by the trial Court – necessarily meaning that no adjudication on the merits of the case can be made. The consequences of such a conclusion if reached by the appellate Court, in the course of hearing of the appeal, are stipulated under Section 12(4)(c), which is already taken note of earlier.

34. That leads us to the next question regarding the legal character of Section 149. Is it a provision conferring authority on the Court to call upon a plaintiff to make payment of court fee which was found to be due but short paid on the plaint or is it a provision conferring a right on the plaintiff to make good the deficit court fee at any point of time irrespective of the provisions of the law of limitation and other provisions and principles of law.

35. We have already noticed that under Order VII Rule 11, a plaint, which has not properly valued the relief claimed therein or is insufficiently stamped, is liable to be rejected. However, under Rule 13, such a rejection by itself does not preclude the plaintiff from presenting a fresh plaint. It naturally follows that in a given case where the plaint is rejected under Order VII Rule 11 and the plaintiff chooses to present a fresh plaint, necessarily the question arises whether such a fresh plaint is within the period of limitation prescribed for the filing of the suit. If it is to be found by the Court that such a suit is barred by limitation, once again it is required to be rejected under Order [2012) 6 S.C.R. A VII Rule 11 Clause (d). However, Section 149 CPC, as interpreted by this Court in Mannan Lal (supra), confers power on the Court to accept the payment of deficit court fee even beyond the period of limitation prescribed for the filing of a suit, if the plaint is otherwise filed within the period of limitation. B Therefore, the rigour of Order VII Rule 11 CPC and also Section 4 of the Tamil Nadu Act is mitigated to some extent by the Parliament when it enacted Section 149 CPC. We may not forget that Limitation is only a prescription of law; and Legislature can always carve out exceptions to the general rules c of limitation, such as Section 5 of the Limitation Act which enables the Court to condone the delay in preferring the appeals etc.

36. This court on more than one occasion held that the jurisdiction under Section 149 CPC is discretionary in nature. D [See P.K. Pa/anisamy Vs. N. Arumugham & Anr., (2009) 9 sec 173 and (2012) 13 sec 539]

37. It is well settled that the judicial discretion is required to be exercised in accordance with the settled principles of law. It must not be exercised in a manner to confer an unfair E advantage on one of the parties to the litigation. In a case where the plaint is filed within the period of limitation prescribed by law but with deficit court fee and the plaintiff seeks to make good the deficit of the court fee beyond the period of limitation, the Court, though has discretion under Section 149 CPC, must F scrutinise the explanation offered for the· delayed payment of the deficit court fee carefully because exercise of such discretion would certainly have some bearing on the rights and obligations of the defendants or persons claiming through the defendants. (The case on hand is a classic example of such a G . situation.) It necessarily follows from the above that Section 149 CPC does not confer an absolute right in favour of a plaintiff to pay the court fee as and when it pleases the plaintiff. It only enables a plaintiff to seek the indulgence of the Court to permit the payment of court fee at a point of time later than the H presentation of the plaint. The exercise of the discretion by the A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM [J. CHELAMESWAR, J.] Court is conditional upon the satisfaction of the Court that the plaintiff offered a legally acceptable explanation for not paying the court fee within the period of limitation.

38. On the facts of the case on hand, the High Court recorded its conclusion as follows: " ………. the Subordinate Judge has erred in allowing the I .A. Nos. 75 and 76 of 2004 by exercising the discretion without analysing the bona tides of the plaintiffs case and without giving notice to the defendant." Such a conclusion was recorded on the basis of the finding: "Apart from that sufficient cause was not shown in the two affidavits filed in support of the application to condone the delay of representation in I.A. No.76/2004 the reason given was that (jue to non availability of stamp paper, proper court fee could not be paid. In I.A. No. 75/2004 no reason has been stated for such deficit court fee. Even for the delay also the conventional reason of jaundice has been stated and the plaintiffs alleged that they have been taking Siddha treatment for such ailment. Even such affidavits have been filed only by the counsels and not by the parties. But accepting such reasons, the delay in representation as well as the payment of deficit court fee has been accepted by the court below." [Emphasis supplied]

39. We do not see any reason to take a different view than that are taken by the High Court. The discretion under Section 149 was not exercised by the trial Court in accordance with the principles of law. The appeal is, therefore, required to be dismissed on that count alone. In view of such a conclusion, we do not think it necessary to examine the other questions raised by the 2nd defendant.

40. The appeal is dismissed. D.G. Appeals dismissed.