K. Srinivasan vs P. Srinivasan

Venkataswami, J.—By consent of learned counsel on both sides, the O.S.A. itself is taken up for final disposal. This appeal is filed against an order of a learned single Judge in C.S. Diary No. 5246/88 and Application Nos.20105 and 20106/88. The admitted facts are that the plaintiff/applicant has filed C.S. Diary No. 5246/88 with court fee of Rs.4960. The Office returned the papers pointing out certain defects. The bundle was lost in the office of the counsel for the plaintiff and in that circumstance the applicant approached the court for re-construction of the papers and for exemption from payment of court fee again.

The learned Judge accepted the fact of loss of papers in the office of the counsel for the plaintiff. He also accepted the payment of court-fee of Rs.4,960 by observing thus:

There is absolutely no reason to disbelieve the averments found in the affidavit filed by S. Kadarkarai. I accept his case that the papers were lost in his office. The records of the court show that on 23-3-1988 the plaint was presented bearing a Court-fee of Rs.4,960. The records also show that the plaint was returned along with the other papers on 6-9-88 and counsel took the return on the same day. Hence I accept the version given by counsel as to the loss of papers.

However, the learned Judge held that the question of reconstruction will arise only if the records are lost while in the custody of the Court. As the records were lost in this case in the office of the counsel for the plaintiff, the question of reconstruction will not arise, but it will be a case of re-presentation of the fresh papers. However, the learned Judge took a view that the plaintiff must again pay the court-fee of Rs.4,960, and if he so desires, can move the Revenue for refund of the court-fee already paid. The reason for coming to this conclusion according to the learned Judge, is as follows:--

If the applicant is permitted to represent the papers without the requisite court fee on the plaint, it will tantamount to conferring a premium upon his negligence. Such an order will also open the floodgates of perjury and litigants will start filing applications with different sorts of versions to avoid payment of appropriate court-fee. The court cannot in each case be embarking on an enquiry as to the truth or otherwise of such versions put forward by the litigants. In my view, the exercise of inherent power should be used on sound judicial discretion and it should not result in ad hoc or arbitrary orders giving rise to undesirable consequences. Hence, I am not inclined to permit the applicant to re-present the papers without the court-fee.

With respect, we are unable to agree with the above view. The learned Government Advocate also submitted that the plaintiff can pay the court-fee and can get refund of the court-fee already paid.

The apprehension expressed by the learned Judge may not apply to the facts of this case inasmuch as the learned Judge himself has given a clear finding about the payment of court-fee on the original plaint that came to be lost in the chambers of the counsel. Once the fact of payment of court fee is established, beyond doubt, a direction for payment of court fee once again only to get refund of the court fee paid earlier, is wholly unnecessary. No doubt, the negligence should not be let off lightly. But, by directing payment of court fee for a second time, it is only the plaintiff who is affected thereby. In any event, on the facts, and in view of the findings of the learned Judge, we are of the view that payment of court fee again along with re-presentation is not called for in this case. We make it clear that each case must be considered on its own facts and no hard and fast rule can be laid down.

In the circumstances, we are of the view that the plaintiff can be permitted to re-present the papers without payment of the court-fee. However, if the office finds that the court-fee already paid namely, Rs. 4,960 is insufficient, it is open to the office to calculate the correct court-fee and claim the balance of appropriate court fee.

The appellant will also file necessary application for condoning the delay in re-presentation. The appeal is accordingly allowed. No costs.