Janaki Amma and Others vs S. Krishnan and Another

George Vadakkel, J.—This revision arises out of a suit for partition. The suit properties belonged to one Velayudhan Pillai. The 1st Defendant who died pending trial of the suit is his wife. Plaintiffs who are Respondents here and the 2nd Defendant, the 1st revision Petitioner, are their children. They had another son, Parameswaran Pillai, 3rd Defendant, the 2nd revision Petitioner, is his widow and the 4th Defendant, the 3rd revision Petitioner, their son. As per Ext. A-1 Velayudhan Pillai in 1122 assigned the suit properties in favour of the 1st Defendant and Parameswaran Pillai alone. As per Ext. A-4 in 1972 the 1st Defendant gifted her rights in these properties to the 2nd Defendant. Plaintiffs'' claim that Ext. A-1 assignment would enure to the benefit of all the children of Velayudhan Pillai and that therefore they are entitled to a share in the suit properties was repelled by the lower court by the preliminary judgment and decree dated 22nd October 1975 by holding that the 1st Defendant is entitled to 2/3 share and Parameswaran Pillai''s heirs, Defendants 3 and 4, as a group are entitled to the remaining 1/3 share. However, the Plaintiffs'' case that Ext. A-4 is (sic)itiated by undue influence exercised by the 2nd Defendant and her husband and therefore, it was liable to be set aside, was upheld, and on that basis, Plaintiffs were held entitled to 4/9 share of the suit properties as heirs of the 1st Defendant. The Plaintiffs had not paid court fee for the relief of setting aside Ext. A-4. Defendants 2 to 4 had in their additional written statement contended that the Plaintiffs had not paid proper court fee. No issue was raised thereon nor was it decided before evidence was taken. By the preliminary judgment the lower court holding that the ''Plaintiffs are therefore liable to pay court fee on the market Value of the 2/3 share that was gifted out to the 2nd Defendant'' by the 1st Defendant under Ext. A-4 and that ''the balance court fee due from the Plaintiffs will be recovered from them'' passed the following preliminary decree:

In the result, a preliminary decree is passed in favour of the Plaintiffs declaring their rights to 4/9 shares in the plaint schedule property and for partition and separate possession of the same. They are also entitled to get their share of mesne profits from 20th March 1972 the quantum of which will be decided in the final decree proceedings Ext. A-4 gift deed will stand set aside. Parties will suffer their costs. The Plaintiffs will take out a commission to get their shares partitioned by metes and bounds. Balance court fee will be paid one month from the date of decree which the suit will stand dismissed.

The preliminary judgment was pronounced on 22nd October 1976. On 7th November 1975, the Plaintiffs pad Rs. 24 as balance court fee payable by them pursuant to the direction contained in the preliminary judgment. They, as per a memo filed on 7th November 1975, valued the 1/3 rights in the gifted properties at Rs. 700 and on that basis paid a court fee of Rs. 24 being the balance payable by them on Rs. 700 which they reckoned as Rs. 56 minus Rs. 32 already paid on the plaint. Note that the preliminary judgment did not specify the amount but said that the Plaintiffs are to pay the balance court fee on the market value of the 2/3rd shares that was gifted out to the 2nd Defendant, without specifying what that market value is and what the balance court fee is. The Plaintiffs were, therefore, perfectly justified in putting their valuation on the aforesaid 2/3 rights, the, correctness of which, no doubt the court is entitled to investigate under the provisions of Section 7 of the Kerala Court Fees and Suits Valuation Act, 1959. On 22nd November 1975, that is to say exactly on the 30th day after the preliminary judgment, Defendants 2 to 4 raised the question as per I.A. No. 18802 of 1975, filed in court on that date that the calculation of market value as per the memo filed by the Plaintiffs on 7th November 1975 is not correct. According to the Defendants as is seen from that petition the market value of the properties had to be fixed at Rs. 1,000 and the Plaintiffs had also to pay the court fee on the market value of the 2/3 share of the gifted properties, namely, on Rs. 660.67 besides the court fee already paid on the plaint. According to the Defendants, therefore, the court fee paid on both occasions together, namely, on the plaint (Rs. 34) and along with the memo dated 7th November 1975 (Rs. 24) would not be the court fee payable as directed in the preliminary judgment. Thereupon the Plaintiffs filed I.A. No. 19016 of 1975 on 26th November 1975 praying that the period of one month fixed for payment of balance court fee as per the preliminary judgment be extended by one week and to delete the consequence clause on the basis that the consequence ordered on default was so ordered erroneously and the said clause is an error apparent on the face of the record. This petition was allowed by the trial court and hence this revision by Defendants 2 to 4.

Along with I.A. No. 19016 of 1975 the Plaintiffs paid another sum of Rs. 29.34. This payment according to the revision Petitioners is out of time and the lower court had no jurisdiction to extend the time since the lower court by the preliminary judgment said that the balance court fee was payable within one month from the date of the decree and that on default the suit will stand dismissed.

This case is a glaring illustration of what the Supreme Court- said in Mahanth Ram Das Vs. Ganga Das, which is as follows:

How undesirable it is to fix time peremptorily for a future happening which leaves the court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders though peremptory (conditional decree apart) are, in essence in terrorem, so that dilatory litigants might put themselves in order and avoid delay.

In the first instance the trial court failed to countenance the contention raised by Defendants 2 to 4 that the court fee paid is insufficient; that court ought to have tried that as a preliminary question and if that court was satisfied that the court fee paid was insufficient ought to have in accordance with the provisions of Section 12(2) of the Kerala Court Fees and Suits Valuation Act, 1959 proceeded to reject the plaint after giving an opportunity to the Plaintiffs to pay the deficit court fee. That court did not even raise an issue on this point. The matter was relegated to the final hearing stage. It was by the preliminary judgment and after passing a preliminary decree declaring the Plaintiffs'' share, and awarding them mesne profits that the court finally said that the suit will stand dismissed in certain eventuality, namely, on failure of the Plaintiffs to pay the balance court fee even which that court did not quantify leaving the matter to be determined by the Plaintiffs. To say the least the trial court has not acted properly which has caused confusion so far as the parties are concerned and embarrassment to the court itself.

I am of the view that the Plaintiffs have complied with the direction contained in the preliminary judgment in that they have paid the court fee which according to them is payable as balance court fee along with the memo dated 7th November 1975, though, perhaps, the quantum thereof was not correct but then, that matter was left by the court to be determined by the Plaintiffs themselves, inviting and anticipating another adjudication on the question of sufficiency of court fee paid within the time allowed and affording a further opportunity to the Plaintiffs to pay deficit court fee, if any, as so determined.

The court''s power to decide the question of sufficiency of court fee paid on a plaint is, under the Court Fees and Suits Valuation Act, 1959, well defined. Firstly, the court has to decide that question before ordering registration of the plaint, and at this stage the court cannot travel outside the materials and allegations contained in the plaint and the materials contained in the statement, if any, filed u/s 10 of the Act -- Section 12(1). Secondly, thereafter the court can take up this question for decision only if a Defendant raises the same by his written statement filed before the first hearing or before evidence is recorded on the ''merits of the claim'' (as defined in the explanation to Section 12) and when so raised, the court has to give a decision thereon before evidence is recorded affecting such Defendant -- Section 12(2). Thirdly, a person added as a Defendant after framing of issues (but not as a successor or representative in interest of one already on record and who had opportunity to raise the question) may with the permission of the court, raise it again, and if so raised, the court can determine the sufficiency of the court fees paid before recording of evidence affecting such Defendant on the merits of the claim -- Section 12(3). Fourthly, whenever a party becomes liable to pay ''additional fee'' by reason of an issue framed in the suit, the court can determine and levy such ''additional fee'' (section 13) in accordance with the provisions of Section 12. In all these cases the court will have to allow time to the Plaintiff to pay the deficit court fee, if any, as determined by the court. If the Plaintiff does not remit the deficit fee within the time allowed by the court, the court shall reject the plaint in cases coming u/s 12, and strike off the issue and proceed to hear and decide the other issues, in those cases arising u/s 13. In fact, Section 12(1) does not any about granting time to pay the deficit court fee nor about rejection of plaint on default but I suppose that Rule 11 of Order VII of the Code of Civil Procedure, 1908 is attracted to those cases falling u/s 12(1). Fifthly, further review of the decision on the question of deficiency of court fee paid is possible only on receipt of report from a court fee examiner deputed by the High Court u/s 18(1) of the Act. When such a report is received all questions raised by such a report shall be heard and decided by the court, and in such cases, the court can review an earlier decision rendered by it on the same question. Presumably, depending upon the provision under which the earlier order determining the sufficiency of court fee paid was passed, Sections 12 and/or 13, -- the court''s power in this regard is to be found, as already seen, only in one or the other or both of them -- the court can reject the plaint or strike off the issue as the case may be, if the Plaintiff does not pay the deficit court fee, if any, as determined u/s 18(2) within the time allowed for the same as required by Section 12 and/or 13, though Section 18(2) does not provide for allowing time to pay deficit court fee nor for rejection of the plaint or striking off the issue in default of payment. Note that in no event can the court dismiss the suit for non-payment of deficit court fee and at the most it can only reject the plaint, and that rejection of plaint, as stated in Order VII Rule 13 Code of Civil Procedure, does not preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action.

In the instant case, the court could have, before recording of evidence began, perhaps, invoked Section 12(2) but it did not. It appears that neither Section 13 nor Section 18 is attracted to this case. It may be that the court could have framed an issue as to whether Ext. A-4 gift deed is liable to be set aside, but no such issue was framed. Issue 3 under which the lower court entered the finding that Ext. A-4 gift deed, ''is invalid and is liable to be set aside'' is: ''Whether the gift deed executed by the 1st Defendant in favour of the 2nd Defendant is invalid''. Assuming that by reason of this issue the Plaintiff was liable to pay ''additional fee'' and that the direction in the judgment to pay balance court fee within a month is really a direction to pay such ''additional fee'', the lower court could have, in the event of non-payment within the time allowed, only struck off this issue and therefore, had no power or jurisdiction even to reject the plaint much less to dismiss the suit (as purportedly done) either dependently or non-dependently of a condition regarding payment of any court fees. Neither the Code of Civil Procedure, 1908 nor the Court Fees and Suits Valuation Act, 1959, enables the court to ''dismiss'' a suit on merits for non-payment of court fees, and certainly not to dismiss a suit, after entering findings on the merits in favour of the Plaintiffs and in fact, decreeing the suit on the basis of these findings. In such cases, even if the court uses the word ''dismiss'' and purports to ''dismiss'' the suit itself, the same would in fact amount only to ''rejection of the plaint'', to which the court can have resort at any stage of the suit provided it has power to decide the question of sufficiency of court fee at that stage. In AIR 1949 373 (Nagpur) the dismissal of the suit after completion of the trial for non-payment of additional court fee was construed and held to be only rejection of the plaint under Order VII Rule 11 of the Code. To the same effect is the Full Bench decision in Bibhas Mohan Mukherjee and Others Vs. Hari Charan Banerjee and Others, . The provision construed in this case, Section 8-B of the Court Fees Act, 1876 as amended in West Bengal required the court to record a finding whether sufficient court fee has been paid, on the first hearing date or as soon as may be thereafter, and ''in every case before proceeding to deliver judgment'' and enabled the court to ''dismiss'' the suit in case of default to pay the deficit fee or to furnish security therefore within the time allowed. Despite the statutory expression that ''the suit shall be dismissed'', the Full Bench said (para 18 at page 494) that ''the dismissal of the suit u/s 8-B(3) of the Court Fees Act, (Bengal Amendment) would, therefore, obviously, come within rejection of the plaint, as contemplated in Order VII, Rule 11 of the Code''. (Emphasis of underlined words by me). Though u/s 2(2) of the Code, a decree shall be deemed to include the rejection of a plaint, which, therefore, is appealable u/s 96 of the Code, can it be said that rejection of plaint conditionally on non-payment of deficit court fee within the time allowed, is a ''conditional decree'' which, in essence, is not in terrorem but one adjudicating rights of parties and under which the opposite party acquires some inviolable right or rights on the happening or non-happening as the case may be of the condition. In view of Rule 13, Order VII which enables the Plaintiff to bring a fresh suit on the same cause of action, if otherwise he is entitled to, and which expressly provides that the rejection of the plaint under Rule 11 shall not of its own force stand in the way of the Plaintiff in so bringing a fresh suit, it appears to me, that a conditional rejection of a plaint dependant upon non-payment of deficit court fees within the time limit can only be characterised as a ''procedural order'' intended to frighten and intimidate the Plaintiff and not as a ''conditional decree'' which as stated by the Supreme Court in the Mahanth Ram Das Vs. Ganga Das, stands on a different footing altogether. In such cases of conditional rejection of the plaint, can the court enlarge the time for payment of deficit court fees, after the expiry of the original period fixed by the conditional order on a petition filed (also after the period) in that behalf is the question that is debated at the bar.

Even assuming that it was only by the payment of further court fee on 26th November 1975 that the Plaintiffs complied with the direction as aforesaid contained in the preliminary judgment, it appears to me that under the provisions of Section 151 of the Code of Civil Procedure, 1908, if not under any other, the lower court has jurisdiction to extent time for payment of balance court fee. I may refer to the decision of Krishna Iyer, J. of this Court as he then was in C.R.P. No. 1287 of 1969 a short note report of which is to be found in 1970 KLT 28. The learned Judge held therein as follows:

A delay of a day in making a deposit has been condoned by the court which passed a conditional order. The legal question mooted is whether there is jurisdiction for the court to do so Tarapada Sarkar Vs. Nepal Gazi and Others, and 1962 M.P. 205 would limit the scope of the principle laid down in 1961 S.C. 882 to cases where the application for extension of time has been applied for before the expiry of the period fixed in the original order. While I am inclined to the view, more compassionate and correct, that the court is not powerless to extend time (at least u/s 151 Code of Civil Procedure) even if the motion is made after the date for deposit has passed, I need not finally decide the point here where I am called upon to interfere with the exercise of a discretion which, far from causing miscarriage of justice, prevents it. Section 115 CPC vests a power to be exercised sparingly -- to intervene where illegal or irregular exercise of jurisdiction occasions failure of justice and not to inflict injustice in the name of law.

I am in full agreement with the aforesaid statement of law and this, I suppose, is also supported by the decision of the Supreme Court already referred to, Mahanth Ram Das Vs. Ganga Das, . In the said decision that court said as follows:

But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions u/s 151 of the CPC were filed.

Time for payment was to expire on 8th July 1954 on which date the Appellant filed an application for extension of time, but this application was dismissed on 13th July 1954, when it came up for hearing on the ground that the appeal already stood dismissed as the amount was not paid within the time given. Thereupon the Appellant filed an application u/s 151 of the Code on 2nd September 1954, obviously after the expiry of the original period fixed for payment of deficit court fee. This too was dismissed since the High Court took the view that the proper remedy was review. The Appellant then filed an application u/s 151 read with Order 47, Rule 1 of the Code. This application was heard on 27th September 1955. The High Court ruling out Order 47, Rule 1 also held that Sections 148, 149 and 151 could be ''applied only to cases which were not finally disposed of, and that time under them could be extended only before the final order was actually made''. It is with reference to the two applications u/s 151 filed after the period has expired and the conditional order has worked itself out that the Supreme Court said that the High Court could have exercised its inherent powers and extended the time as originally fixed.

It is necessary to mention that the same view as in Tarapada Sarkar Vs. Nepal Gazi and Others, and in Buta Singh Shankar Singh Vs. State of Madhya Pradesh, , referred to by Krishna Iyer, J., limiting the scope of the principle laid in Mahanth Ram Das Vs. Ganga Das, has been taken by this Court in S. Mahalinga Bhatta Vs. Assanare Beary, . This case concerned a conditional order allowing an application under Order 9, Rule 13 on payment of costs within a certain time and dismissing the same if costs were not paid within that time. The day after the period expired a petition was filed to enlarge the time and to receive the costs ordered. This Court said that for two reasons Section 148 cannot be applied, namely:

(1) Inasmuch as the extension of time prayed for does not relate to any act prescribed or allowed by the CPC in the case of the impugned orders Section 148 has no application; and (2) the petition has been filed after the expiry of the period granted by the court and that order has already worked itself out from the date on which the condition was imposed by the court.

However, this Court in that case also said that ''section 151 may in proper cases be available for seeking extension of time for compliance of an order'', though on the facts of that case, this Court was of the view that it was not a proper case for exercise of inherent power and held that the lower court was not, for that reason, justified in resorting to Section 151, of the Code. This decision, again, supports the view stated above that, at any rate, Court has inherent powers to extend the time fixed for payment of deficit court fees even after a conditional order in that behalf has worked itself out by expiry of time granted for that, and such power can be exercised on a petition filed for that purpose after the expiry of the period originally fixed. It remains to be stated that so far as I am concerned, I do not comprehend how there can be a distinction between a petition filed before the expiry of the time fixed in a conditional order and one filed after the expiry of the period. In my view either Section 148 is attracted or is not attracted, and if attracted the section itself is authority for the position that the court has in its discretion power to enlarge the period fixed or granted by the court from time to time even though the period originally fixed or granted would have expired. If power there be to extend the period even after expiry of the period fixed originally, cannot that power be invoked so long as that power exists and no rules of law of limitation bars such invocation, even if it be that under the original order fixing time certain consequences are to follow wherefore on the expiry of the period fixed without compliance with that order those consequences have automatically followed -- exercise of the power which exists (statute says it exists) in favour of extension, would necessarily undo the consequences that might have befallen for the consequences are purely the result of fixation of an outer date in the original order for doing certain thing and the court has power to fix another date beyond the outer date already fixed. That the court does not lose this power even after the consequences have happened by the expiry of the last date fixed in the order is clear from the Supreme Court decision referred to above where that court held that the power could be exercised and the period could be extended even after the expiry of the period which meant after the consequences have arisen by expiry of the period. Therefore that the consequences stated in the order have resulted is no impediment for the court to exercise its power u/s 148 of the Code is clear. If power exists and there is no impediment in the matter of exercise thereof could not a litigant before court invoke that power so long as that power exists, be it before the consequences have followed or after. It appears to me that existence of power in the court wherefore one could invoke it so long as it exists and exercise thereof by the court which is purely in its discretion depending upon the facts and circumstances in a given case cannot be mixed up. Whatever that may be, it is not necessary for me to finally decide that point so far as the case. on hand is concerned since I am resting this decision on Sections 151 and 115 of the Code and not on Section 148 -- otherwise I would have referred this case for a decision by a larger bench. I make it clear that I have not decided the point but only indicated another possible line of approach to the question.

It appears to me that, in so far as I.A. No. 19016 of 1975 is one invoking Section 151 of the Code also, the lower court had jurisdiction to enlarge the time as it did and that the jurisdiction u/s 115 of the Code would not be attracted to the case on hand since in my view interference with the said order would only occasion failure of justice and inflict injustice.

There is no merit, in view of what is stated, in this Civil Revision Petition. The same is dismissed. However, in the circumstances of the case there will be no order as to costs.