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Judgment
S.J. Kathawalla, J. (Oral)—The above Suit was filed by the Plaintiff on 11th November, 2013 through his Advocate Ms. Rekha K. Mehta for a declaration that he is the owner of the script and screen play of the film Krrish-3 and that the Defendants are not entitled to use the said script and the screen play for their film Krrish-3 or for any other film.
At the time of the filing of the above Suit, the Plaintiff had not paid the requisite Court fees. Instead the Advocate for the Plaintiff on 26th October, 2013 made an endorsement on the docket of the Plaint that "The Plaintiff is residing in remote village in Madhya Pradesh. The Plaintiff is urgently required to file the Suit otherwise his claim would be prejudiced. The film would be released in few days."
In response, the Prothonotary and Senior Master endorsed : "without prejudice granted two weeks time to the Plaintiff to pay the Court fee." Interestingly, the endorsement of the Prothonotary and Senior Master is dated 25th October, 2013.
Again why the Prothonotary used the words "without prejudice ... ... " is difficult to comprehend.
Thereafter on 29th October, 2013 the Plaintiff through his Advocate moved an Application before this Court seeking urgent ad-interim relief restraining the Defendants from releasing the film Krrish-3 on 1st November, 2013. By its reasoned Order dated 29th October, 2013, this Court rejected the Plaintiff''s Application to restrain the release of the film Krrish-3.
On 7th March, 2014 when the Suit was called out for directions, none appeared for the Plaintiff in Suit (L) No. 967 of 2013. In view thereof, the Suit was dismissed for want of prosecution.
After almost a year, my attention was drawn by one of the diligent staff members to the fact that the Plaintiff has, without paying Court fee moved this Court for urgent ad-interim reliefs, and being unsuccessful in obtaining the same, has allowed the Suit to get dismissed and has not paid the requisite Court fee till date. Therefore, on 24th June, 2015, this Court passed the following order:
"Ms. Rekha K. Mehta, Advocate for the Plaintiff having her office at B/4, Bhujbal Niwas, Opposite Bharat Cooperative Bank, J.N. Road, Mulund (West), Mumbai - 400080 is directed to remain present before this Court on 1st July, 2015 at 11.00 a.m. Office to serve a copy of this order on Ms. Mehta by hand delivery."
Though the Notice was received by the representative of Ms. Rekha K. Mehta, Advocate, she failed to appear before this Court on 1st July, 2015. The matter was therefore adjourned to 28th July, 2015 with a direction to serve a copy of the order dated 1st July, 2015 on Ms. Rekha K. Mehta, Advocate personally through the Senior Inspector of Police of the concerned local police station.
On 29th July, 2015, Ms. Rekha K. Mehta, Advocate for the Plaintiff appeared before this Court, when the following order was passed :
"The learned Advocate for the Plaintiff undertakes that she will collect the deficit court fee of Rs.2,50,000/- from the Plaintiff and deposit the same with the Prothonotary and Senior Master of this Court within a period of two weeks from today. The undertaking is accepted. Stand over to 12th August, 2015."
Ms. Rekha K. Mehta, Advocate for the Plaintiff, thereafter repeatedly sought time to contact the Plaintiff as well as the Advocate at whose instance she had accepted the brief of the Plaintiff. Ms. Mehta ultimately informed the Court that the Plaintiff is avoiding her calls and not coming forward to pay the requisite Court fee.
In view thereof, a bailable warrant in the sum of Rs.15,000/- was issued against the Plaintiff. The said warrant was made returnable on 31st August, 2015.
On 31st August, 2015 the Plaintiff was produced before this Court by the police officials from Madhya Pradesh. On that day, the following order was passed :
"1. Pursuant to the bailable warrant issued against the Plaintiff, he is today present in Court. The Plaintiff undertakes to pay the balance court fees of Rs.2,50,000/- as follows :
Rs.50,000/- By 3.00 p.m. today Rs.50,000/- on or before 30-09-2015
Rs.50,000/- on or before 31-10-2015
Rs.50,000/- on or before 30-11-2015
Rs.50,000/- on or before 23-12-2015
The undertaking is accepted.
... ... ... ... "
The Plaintiff thereafter paid the first four instalments but failed and neglected to pay the 5th instalment. The Plaintiff has not bothered to appear before the Court and seek further time / extension to comply with the undertaking given by him and accepted by this Court. In view thereof, a bailable warrant in the sum of Rs. 15,000/- be issued against the Plaintiff - Uday Singh Deshraj Rajput made returnable on 22nd February, 2016 at 3.00 p.m. The Prothonotary and Senior Master shall forward the said bailable warrant to the concerned Commissioner of Police/Superintendent of Police, Madhya Pradesh, by speed post with a direction to the said authority to execute the said bailable warrant and return the executed warrant to this Court, before the returnable date.
Section 149 of the Code of Civil Procedure, 1908 (CPC) empowers the Court in its discretion to allow a person to make up deficiency of court fees as decided by the Court. Section 149 of the CPC is reproduced hereunder:
"149. Power to make up deficiency of Court-fees.- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Courtfees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."
Lately, this Court has observed that very often Advocates on record immediately upon filing suits approach the Prothonotary and Senior Master and orally request for extension of time to pay the Court fees. The Prothonotary and Senior Master in each and every case, i.e. without any exception, when first such oral request is made, unconditionally grants time to pay the court fees on an undertaking from the Advocate to pay the same at a later date, without even ascertaining as to why the Court fees are not paid upon presentment of the Plaint.
Again after accepting the undertaking and granting time to a party to pay the court fees at a later date, the office of the Prothonotary and Senior Master has not evolved any system to follow up whether the undertaking given is complied with or not. It is only when the suit appears on the Board of the Prothonotary and Senior Master in normal course for rejection on the ground of non-removal of objections that the Prothonotary and Senior Master realises that the undertaking accepted by him has been breached and in fact a substantial period has lapsed thereafter. Interestingly, the Prothonotary and Senior Master once again grants time (this time without an undertaking) to remove office objections within a stipulated period (including objection as regards non-payment of court fees) failing which the suit is to stand automatically dismissed. The suit thereafter would stand dismissed for non-removal of office objections.
In view thereof, as has happened in the present case, many dishonest Plaintiffs in the meantime apply for urgent ad-interim reliefs and upon the same being refused, abandon the suits and allow them to be dismissed for non-removal of office objections including objections concerning non-payment of court fees.
In my view, the word "Court" used in Section 149 of the CPC would not include the Prothonotary and Senior Master. The matters which are permitted to be disposed of by the Prothonotary and Senior Master are provided for by Rule 131 of the Bombay High Court (Original Side) Rules. Except these matters, where there is a delegation of the Chamber Judge''s powers to the Prothonotary and Senior Master, the Prothonotary and Senior Master cannot exercise powers of the Court/Chamber Judge/Judge concerned. The order to be passed by the Court under Section 149 is a judicial order, to be passed after exercise of a judicial discretion. The Hon''ble Supreme Court in the case of Buta Singh (Dead) by L.Rs v. Union of India (1995) 5 SCC 284 considered the power of the Court under Section 149 and held that "the discretion conferred on the Court by Section 149 is a judicial discretion" and observed further as follows:
"The aid of Section 149 could be taken only when the party was not able to pay court fee in circumstances beyond his control or under unavoidable circumstances and the court would be justified in an appropriate case to exercise the discretionary power under section 149, after giving due notice to the affected party."
There is, thus, no question of the Prothonotary & Senior Master passing any order under Section 149.
Even otherwise, without ascertaining the reason/s for non payment of court fees along with the presentation of plaint, the Plaintiff could not as a matter of course be granted time to pay court fees at a later date. The Prothonotary appears to be passing such orders almost as a matter of routine. It is because of such a practise being followed by the Prothonotary and Senior Master, and in the absence of any follow up mechanism, that dishonest Plaintiffs take full advantage of the situation, and after unsuccessfully applying for urgent ad-interim reliefs, or after a change of mind qua pursuing the Suit, abandon the suit and allow the same to be dismissed.
On being questioned by this Court as to under which provision of law the Prothonotary and Senior Master, immediately upon filing of a Suit, without any written application and without ascertaining the reason for non-payment of admitted Court fee at the time of presentation of a Suit, grants time to the Plaintiffs/Petitioners to pay Court fees at a later date, the Prothonotary has informed me that he is doing so in exercise of his power under Rule 986 of the Bombay High Court Original Side Rules, 1980. Rule 986 is reproduced hereunder :
"R. 986. Rejection of plaint, memo of appeal, execution application and applications and petition of original nature for non-removal of office objections.-Every plaint, memo of appeal, application for execution and all other applications and petitions of the original nature, including the petition by an indigent person, in which the Plaintiff/Appellant/Applicant/Petitioner does not remove the office objections within 30 days from the date of lodging the said documents, shall be placed before the Prothonotary and Senior Master for directions, who may reject such documents for non-removal of office objections. Rule 133 of these rules will apply to such rejection."
If this explanation is correct, there is no apparent reason why the Prothonotary is taking an undertaking from the Plaintiff and/or his/her Advocate to pay the Court fees within two weeks when the parties and/or their Advocates approach him immediately upon filing of the Suit, seeking extension of time to pay the Court fees.
If Rule 986 is applicable to the case of non-payment of Court fees admittedly payable, every Plaintiff would be at liberty not to pay the Court fees at the time of presentment of the Plaint, allow the office to raise an objection qua non payment of the admitted Court fees and thus automatically get 30 days'' time to ''remove the said objection'', i.e., to pay the admitted Court fees. That would be an absurdity. Office objections referred to in Rule 986 do not include an objection pertaining to nonpayment of admitted Court fees which are required to be paid at the threshhold, i.e., at the time of presentation of the Plaint, and that in case of non-payment of such admitted Court fees the only provision which can be invoked is Section 149 of the Civil Procedure Code, 1908, reproduced herein above, which empowers the Court in its discretion to extend time for payment of unpaid Court fees.
It is also necessary to clarify that if a party or its Advocate values the Suit by following the prescribed schedule of fees and pays Court fees accordingly, but the officer of the Court, who scrutinizes the Plaint, is of the view that the Suit is valued on an incorrect provision, and an additional sum is found to be payable towards Court fees, then the party and/or his Advocate would have 30 days'' time to remove or challenge such objection failing which the Plaint may be rejected under Rule 986 of Bombay High Court Original Side Rules. However, at the cost of repetition, it is made clear that when a party and/or his/her Advocate for any reason is unable to pay the admitted amount of Court fees payable along with the Plaint, Rule 986 will have no application in such circumstances, and the only remedy for such party and/or his/her Advocate is to approach the Court under Section 149 of the Code for appropriate orders.
The power under Section 149 of the Civil Procedure Code, 1908 to make up deficiency of Court fees cannot be exercised by the Prothonotary and Senior Master. The Prothonotary also has no power to allow parties and/or their Advocates to pay the admitted Court fees or any part thereof at a later date under Rule 986 of the Bombay High Court Original Side Rules, 1985. The power to use discretion and granting time under Section 149 of the CPC can only be exercised by the Court/Judge concerned. The order under Section 149 is, as the words "in its discretion" make clear, a judicial power, i.e., a power vested in Court. As already held, the expression "Court" does not include the office of the Prothonotary. Such a power cannot be delegated without an express Rule framed in accordance with law.
This power cannot simply be assumed by the Prothonotary.
The practise, therefore, of the Prothonotary & Senior Master granting time to the Plaintiffs and their Advocates to present suits on an undertaking that they shall pay admitted court fees subsequently is without the authority of law and shall therefore immediately be discontinued.