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Thursday, November 21, 2013

s.149 CPC = No document which is chargeable with a fee under the Act shall be acted on by any court or any public office unless the appropriate fee payable under the Act in respect of such a document is paid - When a document on which court fee is payable is received in any court or public office, though the whole or any part of the appropriate court fee payable on such document has not been paid, either because of a mistake or inadvertence of the Court, the Court, in its discretion, may allow the payment of the deficit court fee within such time as may be fixed - Upon such payment, such document "shall have the same force and effect" as if the court fee had been paid in the first instance - Indisputably, the expression "document" takes within its sweep a plaint contemplated under the Code of Civil Procedure - Court Fees Act, 1870. Judicial discretion: Exercise of - Scope - Held: 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 advantage on one of the parties to the litigation.= A. Nawab John & Ors. ….Appellants Versus V.N. Subramaniyam ….Respondent = published in http://judis.nic.in/supremecourt/helddis.aspx

Court Fees Act, 1870: Filing of plaint - Deficient court fee - Right of
defendant to raise objection - Held: Question of court fee is a matter
between the plaintiff and the Court - If the Court comes to the conclusion
that the court fee paid in the lower court is not sufficient, the court
shall require the party to make good the deficiency - The legislature did
not intend to give any advantage to the defendants on account of the
payment of the inadequate Court fee by the plaintiffs - 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
u/s.149 CPC, must 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 - It
necessarily follows that s.149 CPC does not confer an absolute right in
favour of a plaintiff to pay the court fee as and when he pleases - 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 presentation of the
plaint - The exercise of the discretion by the 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 - Code of Civil Procedure, 1908 - s.149.

Code of Civil Procedure, 1908: s.149; O.7, r.11 - Rejection of plaint
sought on ground of deficiency of court fees - Held: O.7 r.11 requires a
plaint to be rejected, inter alia, where the relief claimed is undervalued
and/or the plaint is written on a paper insufficiently stamped, and, in
either case, the plaintiff fails to either correct the valuation and/or pay
the requisite court fee by supplying the stamp paper within the time fixed
by the court - However, s.149 speaks about the power to make up deficiency
of court-fees - When s.149 speaks about a document with respect to which
court fee is required to be paid, it takes within its sweep not only
plaints but various other documents with respect to which court fee is
required to be paid under the appropriate law including written statements
in a suit - Therefore, from the language of s.149 it 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 - Therefore, 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 - s.149 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 - Limitation is only a prescription of law;
and Legislature can always carve out exceptions to the general rules of
limitation, such as s.5 of the Limitation Act which enables the Court to
condone the delay in preferring the appeals etc. - Limitation Act - Court
Fees Act, 1870.

Transfer of Property Act, 1882:

s.52 - Pendente lite purchaser's application for impleadment - Held: Should
normally be allowed or considered liberally.

s.52 - Effect of - Held: Effect of s.52 is not to render transfers affected
during the pendency of a suit by a party to the suit void but only to
render such transfers subservient to the rights of the parties to such
suit, as may be, eventually, determined in the suit.
Tamil Nadu Court Fees and Suits Valuation Act, 1955: ss.4, 5, 12 - Held: No
document which is chargeable with a fee under the Act shall be acted on by
any court or any public office unless the appropriate fee payable under the
Act in respect of such a document is paid - When a document on which court
fee is payable is received in any court or public office, though the whole
or any part of the appropriate court fee payable on such document has not
been paid, either because of a mistake or inadvertence of the Court, the
Court, in its discretion, may allow the payment of the deficit court fee
within such time as may be fixed - Upon such payment, such document "shall
have the same force and effect" as if the court fee had been paid in the
first instance - Indisputably, the expression "document" takes within its
sweep a plaint contemplated under the Code of Civil Procedure - Court Fees
Act, 1870.

Judicial discretion: Exercise of - Scope - Held: 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 advantage on one of the parties to the litigation.

In a suit for specific performance of agreement of sale, the suit was
valued at Rs.13 lacs on which the plaintiff calculated court fee at
Rs.99,875 under Section 42 of the Tamil Nadu Court Fees and Suits Valuation
Act, 1955. However, the plaint was presented on 20.08.1998 with court-fee
of only Rs.2,000/-. The plaint was returned by the Court on 24.08.1998 with
various objections including the deficiency in the court-fee. The
plaintiffs represented (1st representation) the plaint after a long delay
on 3.5.2002 along with a court-fee of Rs.96,000/-, with an application to
condone the delay in representation. On 3.6.2002, the plaint was again
returned on the ground deficit of the court-fee. The plaint was represented
on 22.1.2004 (second representation) remitting a further amount of
Rs.2,875/- court-fee along with applications to condone the delay in
representation. On the same day, the plaint was once again returned with
certain objections. On 9.4.2004, the plaint was once again represented (3rd
representation) with an application to condone the delay of 70 days in
representation.

On 15.4.2004, the suit was taken on record by the Court. On 5.10.2004, the
original defendant was set ex parte. On the same day, an application was
filed by the sole respondent for impleadment as a party defendant to the
said suit on the ground that he had purchased the suit property on
8.3.1999. The trial court allowed the impleadment application and the sole
respondent became second defendant in the suit.

The respondent filed revision petition before the High Court challenging
the decision of the trial court to condone the delay of 1328 days in the
first of the three representations of the plaint. Another revision petition
was filed challenging the order by which, the trial court condoned the
delay of 585 days in the second of the representation. During the pendency
of the two revision petitions, second defendant (sole respondent) filed his
written statement and also filed application invoking Order 7 Rule 11, CPC
for rejection of the plaint. The application filed under Order 7 Rule 11
CPC by the second defendant/respondent was dismissed and a revision was
filed challenging the same. The said revision petition and revision
petition challenging the delay in filing first two representations were
heard together and allowed by the High Court by a common order. The instant
appeals were filed challenging the order of the High Court.

Dismissing the appeals, the Court

HELD: 1. Section 52 of the Transfer of Property Act incorporates doctrine
of lis pendens and it stipulates that during the pendency of any suit or
proceeding in which any right to immovable property is, directly or
specifically, in question, the property, which is the subject matter of
such suit or proceeding cannot be "transferred or otherwise dealt with", so
as to affect the rights of any other party to such a suit or proceeding. It
is settled legal position that the effect of Section 52 is not to render
transfers affected during the pendency of a suit by a party to the suit
void; but only to render such transfers subservient to the rights of the
parties to such suit, as may be, eventually, determined in the suit. In
other words, the transfer remains valid subject, of course, to the result
of the suit. The pendente lite purchaser would be entitled to or suffer the
same legal rights and obligations of his vendor as may be eventually
determined by the Court. Such being the scope of Section 52, two questions
arise: whether a pendente lite purchaser (1) is entitled to be impleaded as
a party to the suit; (2) once impleaded what are the grounds on which he is
entitled to contest the suit. This Court on more than one occasion held
that when a pendente lite purchaser seeks to implead himself as a party -
defendant to the suit, such application should be liberally considered.
[Paras 16-19] [386-A-B; 387-B-C-F-G]

Jayaram Mudaliar v. Ayyaswami and Others, (1972) 2 SCC 200: 1973 (1) SCR
139; Vinod Seth v. Devinder Bajaj (2010)8 SCC 1; Sanjay Verma v. Manik Roy,
AIR 2007 SC 1332: 2006 (10) Suppl. SCR 469 - relied on.

Belkamy v. Subina (1857) De. GEJ 566 - referred to.

2. The question of court fee is a matter between the plaintiff and the
Court. Sub-section 1 of Section 12 of the Court Fees Act, 1870 gives
finality to the decision of the trial court on the questions relating to
valuation. Sub-Section 2 however provides that the appellate or revisional
Court can direct the deficiency to be made good if it comes to the
conclusion that the lower court had decided the issue to the detriment of
the revenue. In view of the finality attached under sub-section (1) to the
decision of the trial court and the time of the limited scope of the
appellate court's power to examine whether the lower court wrongly decided
the question to the detriment of the revenue, the conclusion obviously is
inevitable the defendant has no right to file a revision petition against
the decision of the trial court. However the position under the Madras
Court Fees Act, 1955 is different. Section 12(2) expressly provides for the
defendant's right to raise the question of the court fees. Section 12(4)(a)
provides that even the appellate Court can go into the question of the
correctness of the decision of the lower court (rendered under Section
12(2)) either on its own motion or on the application of any of the
parties. If the Court comes to the conclusion that the court fee paid in
the lower court is not sufficient, the court shall require the party to
make good the deficiency. The sub-section (c) of Section 12(4) provides for
the dismissal of only the appeal in case of the failure to make good the
deficit of Court fee if the same pertains to that portion of the decree by
which a portion of the plaintiff's claim stood dismissed by the trial
court. However in the case of the default in making good portion of the
court fee pertaining decree in favour of the plaintiff, the Section only
mandates the recovery of the amount by resort to the Revenue Recovery Act
but does not command the suit to be dismissed. Obviously, the legislature
did not intend to give any advantage to the defendants on account of the
payment of the inadequate Court fee by the plaintiffs.
Therefore, the law is clear that though a defendant is entitled under the
Tamil Nadu Act to bring it to the notice of the Court that the amount of
court fee paid by the plaintiff is not in accordance with law, the
defendant cannot succeed in the suit only on that count. But the dispute of
the second defendant is not regarding the amount of the court fee but the
acceptance of the court fee after the expiry of the period of limitation
applicable to the suit. [paras 20-22] [389-C-F-H; 390-A, C-D; 391-B-F; 394-
A-D]

Rathnavarma Raja v. Smt. Vimala AIR 1961 SC 1299: 1961 SCR 1015 - relied
on.

SL Lakshmana Ayyar vs. TSPLP Palaniappa Chettiar AIR 1935 Mad.927 -
referred to.

3. The law relating to the valuation of the suits and the payment of court
fees in the State of Tamil Nadu is "The Tamil Nadu Court Fees and Suits
Valuation Act, 1955". By Section 87 of the said Act, two enactments known
as Court Fees Act 1870 and Suits Valuation Act 1887 (which governed the
field of the valuation of suits and payment of court fees) were repealed.
The Tamil Nadu Act prescribes the method and manner of the determination of
valuation of the suits and the appropriate court fee payable with reference
to various kinds of suits and appeals etc. Section 4 of the Act stipulates
that no document which is chargeable with a fee under the said Act shall be
acted on by any court or any public office unless the appropriate fee
payable under the Act (Court fee) in respect of such a document is paid.
Section 5 stipulates when a document on which court fee is payable is
received in any court or public office, though the whole or any part of the
appropriate court fee payable on such document has not been paid, either
because of a mistake or inadvertence of the Court, the Court, in its
discretion, may allow the payment of the deficit court fee within such time
as may be fixed. Section 5 further declares that upon such payment, such
document "shall have the same force and effect" as if the court fee had
been paid in the first instance. Indisputably, the expression "document"
appearing under Section 4 and 5 takes within its sweep a plaint
contemplated under the Code of Civil Procedure. Under Section 28 of the
Court Fees Act 1870, it is categorically declared that "no document which
ought to bear a stamp under this Act shall be of any validity unless and
until it is properly stamped". However, it is further provided in the same
Section that a Court may permit the payment of appropriate court fee in its
discretion and if the deficit is made good "every proceeding relative
thereto shall be as valid as if it had been properly stamped in the first
instance". The language of the Tamil Nadu Act is different. Though Section
4 declares no document in respect to which court fee is required to be paid
under the Act but not paid shall be acted upon, it does not declare the
document to be without any validity. [Paras 24- 26] [394-H; 395-A-C-G-H;
396-A-E]

4. Order VII Rule 11 CPC requires a plaint to be rejected, inter alia,
where the relief claimed is undervalued and/or the plaint is written on a
paper insufficiently stamped, and, in either case, the plaintiff fails to
either correct the valuation and/or pay the requisite court fee by
supplying the stamp paper within the time fixed by the court. Rule 13
categorically declares that the rejection of a plaint shall not of its own
force preclude the plaintiff from presenting a fresh plaint in respect of
the same cause of action. However, Section 149 of the Code talks about the
power to make up deficiency of court-fees. Section 149 does not deal only
with court fees payable on a plaint. The said Section also deals with every
document with respect to which court fee is required to be paid under the
appropriate law. Order VIII of the Code provides for set-off and counter
claims under Rule 6 and 6A. Under Section 8 of the Tamil Nadu Act, it is
declared that "a written statement pleading a set-off or counter claim
shall be chargeable with fee in the same manner as a plaint". Therefore,
when Section 149 of the Code speaks about a document with respect to which
court fee is required to be paid, it takes within its sweep not only
plaints but various other documents with respect to which court fee is
required to be paid under the appropriate law including written statements
in a suit. Therefore, from the language of Section 149 CPC it 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. Therefore, 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. [Paras 27- 28] [396-E-F;
397-A-B-D-H; 398-A]

5. 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 counts.
Under Section 12(1) of the Tamil Nadu Act, 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. Under Section 12(2) of the
Tamil Nadu Act, 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 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. 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). [Paras 32-33] [400-D-F; 401-A-C]

6. 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 VII Rule 11 Clause (d). However,
Section 149 CPC 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.
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. Limitation is only a prescription of law; and
Legislature can always carve out exceptions to the general rules of
limitation, such as Section 5 of the Limitation Act which enables the Court
to condone the delay in preferring the appeals etc. [Para 35] [401-F-H;
402-A-C]

7. 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 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
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 situation.) It necessarily follows 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 presentation of the plaint. The exercise of
the discretion by the 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. The discretion under
Section 149 was not exercised by the trial Court in accordance with the
principles of law. [Paras 37, 39] [402-D-H; 403-A, F]

Mannan Lal v. Mst. Chhotka Bibi (dead) by Lrs. & Ors. AIR 1971 SC 1374:
1971 (1) SCR 253; P.K. Palanisamy v. N. Arumugham & Anr., (2009) 9 SCC 173:
2009 (11) SCR 342 - relied on.

K. Natarajan v. P.K. Rajasekaran, (2003) 2 M.L.J. 305; Smt. Saila Bala
Dassi v. Smt. Nirmala Sundari Dassi and Another 1958 SCR 1287: AIR 1958 SC
394; Gavaranga Sahu Vs. Batakrishna Patro, (1909) ILR 32 Mad 305 (FB);
Faizullah Vs. Mauladad, AIR 1929 PC 147 - referred to.

Case Law Reference:

(2003) 2 M.L.J. 305 referred to Para 12(3)
1973 (1) SCR 139 relied on Para 16
(1857) De. GEJ 566 referred to Para 16
(2010) 8 SCC 1 relied on Para16
2006 (10) Suppl. SCR 469 relied on Para 17
1958 SCR 1287 referred to Para 19
AIR 1935 Mad.927 referred to Para 20
1961 SCR 1015 relied on Para 21
1971 (1) SCR 253 referred to Para 29
(1909) ILR 32 Mad 305 (FB) referred to Para 30
AIR 1929 PC 147 referred to Para 30
2009 (11) SCR 342 relied on Para 36

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4838-4840 of 2012.

From the Judgment & Order dated 22.12.2006 of the High Court of Judicature
at Madras in CRP (PD) Nos. 657, 658 and 797 of 2006.

S. Gurukrishna Kumar, A. Prasanna Venkat, Srikala Gurukrishna Kumar for the
Appellants.

R. Venkataramani, Aljo Joseph, V. Senthil Kumar, Balaji Srinivasan for the
Respondent.

                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NOS.  4838-4840     OF 2012
            [Arising out of SLP (Civil) Nos.20349-20351 of 2007]



A. Nawab John & Ors.                              ….Appellants

                                   Versus

V.N. Subramaniyam                                 ….Respondent


                               J U D G M E N T


Chelameswar, J.


            Leave granted.

2.          The 5 petitioners herein filed O.S.No.100 of 2004,  against  one
Sengoda Gounder,  who  is  not  a  party  to  the  Special  Leave  Petition,
essentially, for the specific performance of a  registered  agreement  dated
22-03-1995, of sale of the suit  scheduled  land  admeasuring  approximately
Acs.2-00 and delivery of possession of the same; in the alternative, it  was
prayed that the defendant be directed to refund the amount of Rs.12,15,125/-
 with interest, etc.

3.          The parties are  referred  to  in  this  Judgment  as  they  are
arrayed in the abovementioned Suit.

4.          It is  the  case  of  the  Plaintiffs  that  the  abovementioned
defendant was indebted to one Mr. Radhakrishnan and also to the  Tamil  Nadu
Industrial Investment  Corporation  Limited  (for  short  ‘TNIIC”).   It  is
alleged in the plaint that Sengoda Gounder wanted to clear the debts to  the
abovementioned two persons before the property is actually conveyed  to  the
plaintiffs.  For the said purpose, Sengoda Gounder collected  an  amount  of
Rs.12,15,125/- in instalments from the plaintiffs.  In spite of  receipt  of
such payment, Sengoda Gounder  did  not  execute  the  sale  deed,  on  some
pretext or other.  Therefore, the Suit.

5.          During the pendency of the Suit,  the  sole  respondent  herein,
filed an Application praying that he be impleaded as a  party  defendant  to
the said Suit, on the ground that he purchased the suit  scheduled  property
on 08-03-1999 for a consideration of Rs.3,93,560/-.   It  appears  from  the
record that the said I.A. was allowed and the  sole  respondent  herein  was
impleaded as the second defendant in the  abovementioned  Suit.   Consequent
upon the said impleadment, the plaint came to be amended by  inserting  para
10A, the details of which are not necessary for the present purpose.

6.          Initially, the Suit was valued at Rs.13,31,663-00 ps.  on  which
the plaintiff calculated that a court-fee of Rs.99,875-75  ps.  is  payable,
under Section 42 of The Tamil Nadu  Court  Fees  and  Suits  Valuation  Act,
1955” (hereinafter referred to as the ‘Tamil  Nadu  Act’  for  the  sake  of
convenience).  The plaint was presented on 20-08-1998  with  deficit  court-
fee.  Only an amount of Rs.2,000/- was paid.  The  plaint  was  returned  by
the Court on
24-08-1998 with various objections including the deficiency  in  the  court-
fee.  The plaintiffs represented (1st representation)  the  plaint  after  a
long delay on 03-05-2002 along with a  court-fee  of  Rs.96,000/-,  with  an
Application to condone the delay  in  representation.   On  03-06-2002,  the
plaint was again returned, inter alia, on the ground that there still was  a
deficit of the court-fee.  Eventually, the plaint was represented on  22-01-
2004
(2nd representation) remitting a  further  amount  of  Rs.2,875/-  court-fee
along with Applications to condone the delay  in  representation,  etc.   On
the same day, the plaint was once again returned  with  certain  objections.
On 09-04-2004, the plaint was once again  represented  (3rd  representation)
with an application to condone the delay of 70 days in  representation.   On
15-04-2004, the Suit was numbered as O.S.No.100 of 2004 by  the  Court.   On
05-10-2004, Sengoda Gounder was set ex parte.  On  the  same  day,  however,
the sole respondent herein filed implead-petition in  I.A.No.1532  of  2004,
which was allowed by an order dated 09-03-2005.

7.          The respondent herein filed C.R.P.(PD) No.658  of  2006,  before
the High Court of Madras, challenging the decision of  the  Trial  Court  in
I.A.No.76 of 2004 to condone the delay of 1328 days  in  the  first  of  the
abovementioned three representations  of  the  plaint.   Another  C.R.P.(PD)
No.657 of 2006 was filed challenging the order of the Trial Court  I.A.No.75
of 2004, dated 22-01-2004, by which, the Trial Court condoned the  delay  of
585 days in the second of the abovementioned representations.

8.          During the pendency of the abovementioned two C.R.Ps.,  the  2nd
defendant (sole respondent herein) filed  his  written  statement  and  also
filed Application in I.A.No.3 of 2006, invoking Order-7 Rule-11 of the  Code
of Civil Procedure to reject the plaint.  A week thereafter, on  29-12-2005,
the plaintiffs filed I.A.No.1 of 2006, seeking amendment of the plaint.

9.          I.A.No.1 of 2006 filed by  the  plaintiffs  was  allowed  by  an
order dated 16-02-2006.  Aggrieved by the same, the sole respondent  carried
the matter in Revision to the High  Court  in  C.R.P.(PD)  No.769  of  2006,
which was dismissed by an order dated 25-04-2006.  I.A.No.3  of  2006  filed
by the 2nd defendant/ respondent herein, was dismissed by an order dated 31-
03-2006, and a Revision in C.R.P.(PD)No.797 of 2006, filed  challenging  the
same.

10.           Eventually,   in   C.R.P.(PD)No.797   of   2006   along   with
C.R.P.Nos.658 & 657 of 2006, were heard together and  allowed  by  the  High
Court by a common order dated 22-12-2006, setting aside  the  orders  passed
in I.A.Nos.76, 75 of 2004 and 3 of 2006. The operative portion of the  order
is as under:
           “In the result, all the three CRPs are allowed.   The  numbering
           of the suit No. 100 of 2004 by the  District  Court,  Erode  and
           renumbering the same as O.S.No.4 of 2005 on its transfer by  the
           Additional District Judge (FTC-IV),  Erode  at  Bhavani  is  set
           aside the consequently the trial Court is directed to struck off
           the said suit from its file.”

Hence, the S.L.P.

11.          Initially,  the  Suit  was  presented  before  the   Sub-Court,
Bhavani, but  finally  represented  (3rd  representation)  to  the  District
Court, Erode, due to the change brought about in the pecuniary  jurisdiction
of the Civil Courts by Tamil Nadu Act No.1 of 2004, which  came  into  force
w.e.f., 29-12-2003 and numbered as O.S.No.100 of  2004.   Subsequently,  the
same was transferred to Additional  District  Court  (FTC-IV),  Bhavani  and
renumbered as O.S.No.4 of 2005.  The initial presentation and  the  1st  two
representations, mentioned earlier, of the  Suit  were  to  the  Sub  Court,
Bhavani, and the final representation was  to  the  District  Court,  Erode.
The delay in representation, on the 1st two occasions, was condoned  by  the
Sub Court, Bhavani.

12.         The 2nd defendant made  the  following  submissions  before  the
High Court and before us also:
           (1) that the Sub Court, Bhavani lacked jurisdiction to  consider
           and order  the  1st  of  the  two  delay  condonation  petitions
           (I.A.Nos. 76 and 75 of 2004) in view of the fact that there  was
           no Suit pending, in the eye of law, before the Sub Court  as  on
           22-01-2004 (the  date  on  which  the  abovementioned  IAs  were
           allowed) because of the Amendment to the Civil Courts Act;
           (2) the plaintiffs did not invoke Section 149 of the Code, while
           seeking the condonation of delay in representing the plaint  and
           making good the deficit court-fee, therefore, the  plaint  ought
           to have been rejected;
           (3) The delay in representation was condoned without  notice  to
           the defendant.  In view of the decision of  the  High  Court  of
           Madras in K. Natarajan v. P.K. Rajasekaran, (2003) 2 M.L.J. 305,
           such a procedure, when the court fee is paid beyond  the  period
           of limitation for filing the Suit, is illegal; and
           (4) the Trial Court  mechanically  condoned  the  delay  without
           appreciating the legal position  that,  condonation  of  a  huge
           delay  without  any  proper  explanation  is  uncalled  for  and
           militates against the provisions of the C.P.C.

13.         Whereas the plaintiffs argued before the High Court;
           (1) that the 2nd defendant is a purchaser pendente lite  (plaint
           initially  presented  on  20-08-1998  and  the  2nd   defendant,
           admittedly, purchased the suit scheduled property on 08-03-1999)
           and, therefore, has no locus standi to contest the suit in  view
           of the fact that the 1st defendant  chose  not  to  contest  the
           suit;
           (2) the sale in favour of the 2nd defendant is sham and nominal;
           and
           (3) payment of court-fee is purely a matter  between  the  State
           and the plaintiffs and, therefore,  the  2nd  defendant  has  no
           locus to raise any objection on that count.
14.         In  order  to  examine  the  correctness  of  the  High  Court’s
findings, two preliminary questions / objections raised  by  the  plaintiffs
regarding the locus standi of the 2nd defendant to maintain the three  Civil
Revision Petitions, which were disposed of  by  the  common  Judgment  under
challenge, is required to be examined first.

15.         The first preliminary  objection  is  that  the  2nd  defendant,
being a pendente lite  purchaser,  has  no  locus  standi  to  question  the
correctness of the decision of the Trial  Court  to  condone  the  delay  in
representation  of  the  plaint.   To  understand  the  legal   rights   and
obligations of a pendente lite purchaser, it is  necessary  to  examine  the
jurisprudential background of the doctrine of lis pendens and its  statutory
expression.

16.         This Court in Jayaram Mudaliar v. Ayyaswami and  Others,  (1972)
2 SCC 200 (paras  42  to  44)  quoted  with  approval  a  passage  from  the
Commentaries on the Laws of Scotland, by Bell, which explains  the  doctrine
of lis pendens:
           “43. …………..  Bell, in his commentaries on the Laws of  Scotland,
           said that it was grounded on the maxim :  “Pendent  elite  nibil
           innovandum”.  He observed:


                 “It is a general rule which seems to have  been  recognised
                 in all regular systems of jurisprudence,  that  during  the
                 pendence of an action, of which the object is to  vest  the
                 property  or  obtain  the  possession  of  real  estate,  a
                 purchaser shall be held to take that estate as it stands in
                 the person of the seller, and to be  bound  by  the  claims
                 which shall ultimately be pronounced.”

Section 52* of the Transfer of  Property  Act,  (for  short  ‘the  T.P.Act’)
incorporates doctrine of lis pendens  and  it  stipulates  that  during  the
pendency of any suit or proceeding in which any right to immovable  property
is, directly or specifically,  in  question,  the  property,  which  is  the
subject matter  of  such  suit  or  proceeding  cannot  be  “transferred  or
otherwise dealt with”, so as to affect the rights  of  any  other  party  to
such a suit or proceeding.  The Section is based on the principle:
          “………..that it would plainly be impossible that any action or  suit
          could be brought  to  a  successful  termination,  if  alienations
          pendente lite were permitted to prevail.  The plaintiff  would  be
          liable in every case to be defeated by the defendant’s  alienating
          before the judgment or decree, and would be driven to commence his
          proceedings de novo, subject to be defeated by the some course  of
          proceeding.”


      Belkamy v. Subina (1857) De. GEJ 566 at 588.
Quoted with approval by this Court in Vinod Seth v. Devinder  Bajaj  (2010)8
SCC 1.
17.         It is settled legal position that the effect of  Section  52  is
not to render transfers affected during the pendency of a suit  by  a  party
to the suit void; but only to  render  such  transfers  subservient  to  the
rights of the parties to such suit, as may  be,  eventually,  determined  in
the suit.  In other words, the transfer remains valid  subject,  of  course,
to the result of the suit.  The pendente lite purchaser  would  be  entitled
to or suffer the same legal rights and obligations of his vendor as  may  be
eventually determined by the Court.
         “The mere pendency of a suit does not prevent one of  the  parties
        from dealing with the property constituting the  subject-matter  of
        the  suit.  The  section  only  postulates  a  condition  that  the
        alienation will in no manner affect the rights of the  other  party
        under any decree which  may  be  passed  in  the  suit  unless  the
        property was alienated with the permission of the court.”


        [Sanjay Verma v. Manik Roy, AIR 2007 SC 1332, para 12]


18.         Such being  the  scope  of  Section  52,  two  questions  arise:
whether a pendente lite purchaser (1) is  entitled  to  be  impleaded  as  a
party to the suit; (2) once impleaded what are the grounds  on which  he  is
entitled to contest the suit.

19.           This Court  on  more  than  one  occasion  held  that  when  a
pendente lite purchaser seeks to implead himself as a party -  defendant  to
the suit, such application should be liberally considered.  This Court  also
held in Smt. Saila Bala Dassi v. Smt. Nirmala  Sundari  Dassi  and  Another,
AIR 1958 SC  394,  that,  “justice  requires”,  a  pendente  lite  purchaser
“should be given an opportunity to protect his  rights”.   It  was  a  case,
where the property in dispute had been mortgaged by one of  the  respondents
to another respondent.  The mortgagee filed a suit, obtained  a  decree  and
‘commenced proceedings for sale of the mortgaged property’.   The  appellant
Saila Bala, who purchased the property from the  judgment-debtor  subsequent
to the decree sought to implead herself in  the  execution  proceedings  and
resist the execution.  That  application  was  opposed  on  various  counts.
This Court opined that Saila Bala was entitled (under  Section  146  of  the
C.P.C.) to be brought on  record  to  defend  her  interest  because,  as  a
purchaser pendent elite, she would  be  bound  by  the  decree  against  her
vendor.  There  is  some  divergence  of  opinion  regarding  the  question,
whether a 26pendent elite purchaser is entitled, as a matter  of  right,  to
get impleaded in the suit, this Court in (2005) 11 SCC 403, held that :
              “Further pending the suit, the transferee is not entitled  as
           of right to be made a party to the suit, though the court has  a
           discretion to make him a party. But the transferee endent  elite
           can be added as a proper party if his interest in  the  subject-
           matter of the suit is substantial and  not  just  peripheral.  A
           transferee 26endent elite to the extent he has acquired interest
           from the defendant is  vitally  interested  in  the  litigation,
           where the transfer is of the entire interest of  the  defendant;
           the latter having no more  interest  in  the  property  may  not
           properly defend the suit. He may  collude  with  the  plaintiff.
           Hence, though the plaintiff is under no obligation to make a lis
           pendens transferee a party, under Order 22 Rule  10  an  alienee
           26endent elite may be joined as party. As already  noticed,  the
           court has discretion in the  matter  which  must  be  judicially
           exercised and an alienee would ordinarily be joined as  a  party
           to enable him to protect his interests. The court has held  that
           a transferee 26endent elite of an interest in immovable property
           is a representative-in-interest of the party from  whom  he  has
           acquired that interest. He is entitled to be  impleaded  in  the
           suit or other proceedings where his  predecessor-in-interest  is
           made a party to the litigation; he is entitled to  be  heard  in
           the matter on the merits of the case.”
                                                         [Emphasis supplied]

The preponderance of  opinion  of  this  Court  is  that   a  pendente  lite
purchaser’s application  for  impleadment  should  normally  be  allowed  or
“considered liberally”.

20.   That the question of court fee is a matter between the  plaintiff  and
the Court is a principle which has been  followed  for  a  long  time.   The
Madras High Court in SL Lakshmana Ayyar vs. TSPLP Palaniappa  Chettiar,  AIR
1935 Mad.927 held “ under the prevailing usage, the court  fully  goes  into
the question relating to the Court fee, only upon an objection taken in  the
written statement by the defendant, but as the  judicial  committee   points
out in 36 M.L.1437 the Court fees Act was passed not to arm a litigant  with
a weapon of technicality  against  his  opponent,  and  from  that  view  it
follows, that although in  actual  practice  a  defendant  is  permitted  to
object that the proper Court  fee  has  not  been  paid,  he  has,  strictly
speaking, no legal right to raise such a plea,  but  his  function  must  be
deemed to be, subject to the court’s leave, merely  to assist in  it  coming
to a proper decision.”
Though this judgment does not refer to any statutory provisions, Section  12
of the Court Fees Act,  1870  supports  this  view.   Sub  section  1  gives
finality to the decision of the trial court on  the  questions  relating  to
valuation.
             “ (1) Every question relating to valuation for the  purpose  of
             determining the amount of any fee chargeable under this Chapter
             on a plaint or memorandum of appeal, shall be  decided  by  the
             Court in which such plaint or memorandum, as the case  may  be,
             is filed, and such decision  shall  be  final  as  between  the
             parties to the suit”.


Sub-Section 2 however provides that the appellate or  revisional  Court  can
direct the deficiency to be made good if it comes  to  the  conclusion  that
the lower court had decided the issue to the detriment of the revenue.
             (2) “But whenever any  such  suit  comes  before   a  Court  of
             appeal, reference or revision, if such  Court  considers   that
             the said question has been wrongly decided, to the detriment of
             the revenue, it shall require the party by whom  such  fee  has
             been paid to pay so much additional  fee  as  would  have  been
             payable  had  the  question  been  rightly  decided,  and   the
             provisions of section 10, paragraph (ii), shall apply.”


In view of the finality attached under sub-section (1) to  the  decision  of
the trial court and the time of the limited scope of the  appellate  court’s
power to examine whether the lower court wrongly  decided  the  question  to
the detriment of the revenue, the conclusion  obviously  is  inevitable  the
defendant has no right to file a revision petition against the  decision  of
the trial court.

21.   However the  position  under  the  Madras  Court  fees  act,  1955  is
different. Section 12(2) expressly provides for  the  defendant’s  right  to
raise the question of the court fees:-
                 “(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  is  recorded  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.”


                                                         [Emphasis supplied]

Section 12(4)(a) provides that even the appellate  Court  can  go  into  the
question of the correctness of the decision of  the  lower  court  (rendered
under Section 12(2)) either on its own motion or on the application  of  any
of the parties. (obviously including the defendants)
             (4)(a)Whenever  a case comes up before a Court  of  Appeal,  it
             shall be lawful for the Court, either of its own motion  or  on
             the  application  of  any  of  the  parties,  to  consider  the
             correctness of any order passed by the  lower  Court  affecting
             the fee payable  on the plaint or in any  other  proceeding  in
             the lower Court and determine the proper fee payable thereon.


              Explanation.—A case shall be deemed to come before3  a  Court
              of appeal even if  the appeal relates only to a part  of  the
              subject matter of the suit.
                                                         [Emphasis supplied]

If the Court comes to the conclusion that the court fee paid  in  the  lower
court is not sufficient, the court shall require the party to make good  the
deficiency.
             “(b) If the Court of Appeal decides that the fee  paid  in  the
             lower Court is not sufficient,  the  Court  shall  require  the
             party liable to pay the deficit fee within such time as may  be
             fixed by it.”

However,  this Court in Rathnavarma Raja v. Smt. Vimala  AIR  1961  SC  1299
held:-
             “2. The Court Fees Act was enacted to collect revenue  for  the
          benefit of the State and not to arm  a  contesting  party  with  a
          weapon  of  defence  to  obstruct  the  trial  of  an  action.  By
          recognising  that  the  defendant  was  entitled  to  contest  the
          valuation of the properties in dispute as if it were a  matter  in
          issue between him and the plaintiff and by entertaining  petitions
          preferred by the defendant to the High Court in  exercise  of  its
          revisional jurisdiction against  the  order  adjudging  court  fee
          payable on the plaint, all progress in the suit for the  trial  of
          the dispute on the merits  has  been  effectively  frustrated  for
          nearly five years.  We  fail  to  appreciate  what  grievance  the
          defendant  can  make  by  seeking   to   invoke   the   revisional
          jurisdiction of  the  High  Court  on  the  question  whether  the
          plaintiff has paid adequate  court  fee  on  his  plaint.  Whether
          proper court fee is paid on  a  plaint  is  primarily  a  question
          between the plaintiff and the State. How by an order  relating  to
          the adequacy of the court fee paid by the plaintiff, the defendant
          may feel aggrieved, it is  difficult  to  appreciate.  Again,  the
          jurisdiction in revision exercised by the High Court under Section
          115 of the Code of Civil  Procedure  is  strictly  conditioned  by
          clauses (a) to (c) thereof and may be invoked  on  the  ground  of
          refusal to exercise jurisdiction vested in the  Subordinate  Court
          or assumption of jurisdiction which the court does not possess  or
          on the ground that the court has acted illegally or with  material
          irregularity in the exercise of its  jurisdiction.  The  defendant
          who may believe and even honestly that proper court  fee  has  not
          been paid by the plaintiff has still no right to move the superior
          courts by appeal  or  in  revision  against  the  order  adjudging
          payment of court fee payable on the plaint. But  counsel  for  the
          defendant says that by Act  14  of  1955  enacted  by  the  Madras
          Legislature which applied to the suit in question,  the  defendant
          has been invested with a right not only to contest  in  the  trial
          court the issue whether adequate court fee has been  paid  by  the
          plaintiff, but also to move the High Court in revision if an order
          contrary to his submission is passed by  the  court.  Reliance  in
          support of that contention  is  placed  upon  sub-section  (2)  of
          Section 12. That sub-section, insofar as it is material, provides:


             3. But this section only  enables  the  defendant  to  raise  a
          contention as to the proper court fee payable on a plaint  and  to
          assist the court in arriving at a just decision on that  question.
          Our attention has not been invited to any provision of the  Madras
          Court Fees Act or any other statute which enables the defendant to
          move the High Court in revision against the decision of the  Court
          of first instance on the matter of court fee payable in a  plaint.
          The Act, it is true by Section 19, provides that for  the  purpose
          of deciding whether  the  subject-matter  of  the  suit  or  other
          proceeding has been properly valued or whether  the  fee  paid  is
          sufficient, the court may hold such enquiry as it considers proper
          and issue a commission to any other person directing him  to  make
          such local or other investigation as may be necessary  and  report
          thereon. The anxiety of the Legislature to collect court  fee  due
          from the litigant is manifest from the detailed provisions made in
          Chapter Ill of the Act,  but  those  provisions  do  not  arm  the
          defendant with a weapon of technicality to obstruct  the  progress
          of the suit by approaching the High Court in revision  against  an
          order determining the court fee payable.”


                                                         [Emphasis supplied]

In our  opinion  the  above  conclusion  is  clearly  supportable  from  the
language of sub-section (4)( c).
          (c ) If the deficit fee is not paid within the time fixed and  the
          default is in respect of a relief which has been dismissed by  the
          lower Court and which the appellant seeks in  appeal,  the  appeal
          shall be dismissed, but if the default is in respect of  a  relief
          which has been decreed by the lower Court, the deficit  fee  shall
          be recoverable as if it were an arrear of land revenue.”

It can be seen, the sub-section (c) provides for the dismissal of  only  the
appeal in case of the failure to make good the deficit of Court fee  if  the
same pertains to that portion of the decree   by  which  a  portion  of  the
plaintiff’s claim stood dismissed by the trial court.  However in  the  case
of the default in making good portion of the court fee pertaining decree  in
favour of the plaintiff, the Section  only  mandates  the  recovery  of  the
amount by resort to the Revenue Recovery Act but does not command  the  Suit
to be dismissed.   Obviously the legislature did  not  intend  to  give  any
advantage to the defendants on account of  the  payment  of  the  inadequate
Court fee by the plaintiffs.

22.   Therefore the law is clear that though a defendant is  entitled  under
the Tamil Nadu Act to bring it to the notice of the Court  that  the  amount
of court fee paid by the plaintiff  is  not  in  accordance  with  law,  the
defendant cannot succeed in the suit only on that count.   But  the  dispute
of the 2nd defendant is not regarding the amount of the court  fee  but  the
acceptance of the court fee after the expiry of  the  period  of  limitation
applicable to the suit.

23.    The next question  that  is  required  to  be  examined  is  that  if
appropriate court fee is not paid at the time of the filing of  the  plaint,
can the suit be said to be a valid suit  in  the  eye  of  law.   A  further
question arising out of the above is – what is the effect of the payment  of
appropriate court fee subsequent to the expiry of the period  of  limitation
prescribed by law for the filing of a suit in a case  where  the  plaint  is
filed within the period of limitation applicable to such case. Ancillary  to
the above question is the question whether, in such a  case,  the  defendant
is entitled to notice before the Court accepts the payment  of  the  deficit
Court fee.

24.   The law relating to the valuation of the  suits  and  the  payment  of
court fees in the State of Tamil Nadu is “The  Tamil  Nadu  Court  Fees  and
Suits Valuation Act, 1955”. By Section 87 of the said  Act,  two  enactments
known as The Court Fees Act 1870 and The Suits  Valuation  Act  1887  (which
governed the field of the valuation of suits and payment of court fees)  are
repealed.    It may not be either necessary or profitable  to  go  into  the
scheme of the repealed enactments except to  take  note  of  the  historical
fact for certain limited purpose.

25.    The  Tamil  Nadu  Act  prescribes  the  method  and  manner  of   the
determination of valuation of  the  suits  and  the  appropriate  court  fee
payable with reference to various kinds of suits and appeals  etc.   Section
4 of the Act stipulates that no document which  is  chargeable  with  a  fee
under the said Act shall be acted on by  any  court  or  any  public  office
unless the appropriate fee payable under the Act (Court fee) in  respect  of
such a document is paid.
        “4. Levy of fee in Courts and public offices


        No document which is chargeable with fee under this Act shall --


        (i) be filed, exhibited or recorded in, or be acted on or furnished
        by, any Court including the High Court, or


        (ii) be filed, exhibited or recorded in any public  office,  or  be
        acted on or furnished by any public officer,
        unless in respect of such document there be paid a fee of an amount
        not less than that indicated as chargeable under this Act:


        Provided that, whenever the filing  or  exhibition  in  a  Criminal
        Court of a document in respect of which the proper fee has not been
        paid is in the opinion of the Court necessary to prevent a  failure
        of justice, nothing contained in this section shall  be  deemed  to
        prohibit such filing or exhibition.”

26.   Section 5 stipulates when a document on which court fee is payable  is
received in any court or public office, though the whole or any part of  the
appropriate court fee payable on such document has  not  been  paid,  either
because of a mistake or  inadvertence  of  the  Court,  the  Court,  in  its
discretion, may allow the payment of the deficit court fee within such  time
as may be fixed.  Section 5 further declares that upon  such  payment,  such
document “shall have the same force and effect” as  if  the  court  fee  had
been paid in the first instance.  Indisputably,  the  expression  “document”
appearing  under  Section  4  and  5  takes  within  its  sweep   a   plaint
contemplated under the Code of Civil Procedure (hereinafter ‘the  Code’  for
short).  It may be pertinent to mention that  under  Section  28[1]  of  the
Court Fees Act 1870, it is categorically declared that  “no  document  which
ought to bear a stamp under this Act shall be of  any  validity  unless  and
until it is properly stamped”.  However, it is further provided in the  same
Section that a Court may permit the payment of appropriate court fee in  its
discretion and if the  deficit  is  made  good  “every  proceeding  relative
thereto shall be as valid as if it had been properly stamped  in  the  first
instance”.  The language  of  the  Tamil  Nadu  Act  is  different.   Though
Section 4 declares no document in respect to which court fee is required  to
be paid under the Act but not paid shall be acted upon, it does not  declare
the document to be without any validity.

27.   Order VII Rule 11 CPC requires a plaint to be  rejected,  inter  alia,
where the relief claimed is undervalued and/or the plaint is  written  on  a
paper insufficiently stamped, and, in either case, the  plaintiff  fails  to
either  correct  the  valuation  and/or  pay  the  requisite  court  fee  by
supplying the stamp paper within the  time  fixed  by  the  court.  Rule  13
categorically declares that the rejection of a plaint shall not of  its  own
force preclude the plaintiff from presenting a fresh plaint  in  respect  of
the same cause of action.  However, Section 149 of the  Code  stipulates  as
follows:

1 “149 Power to make up deficiency of court-fees


2

        Where the whole or any part of any fee prescribed for any  document
        by the law for the time being in force relating to  court-fees  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.”

It can be seen from the language of Section 149, it does not deal only  with
court fees payable on a plaint.  The said  Section  also  deals  with  every
document with respect to which court fee is required to be  paid  under  the
appropriate law.  It may be further mentioned that Order VIII  of  the  Code
provides for set-off and counter claims under Rule 6 and 6A.  Under  Section
8 of the Tamil Nadu Act, it is declared that “a written  statement  pleading
a set-off or counter claim shall be chargeable with fee in the  same  manner
as a plaint”.  Therefore, when Section  149  of  the  Code  speaks  about  a
document with respect to which court fee is required to be  paid,  it  takes
within its sweep not only plaints but various other documents  with  respect
to which court fee  is  required  to  be  paid  under  the  appropriate  law
including written statements in a suit.

28.   Therefore, from the language of Section 149 CPC it 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.
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 deficiency is made good no possible  objection
        can be  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.”

                                                         [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 Faizullah 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 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:
             “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,  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  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.
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 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.  [See  P.K.  Palanisamy  Vs.  N.
Arumugham & Anr., (2009) 9 SCC 173 and (2012) 13 SCC 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 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
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 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  presentation  of  the  plaint.
The exercise of  the  discretion  by  the  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 fides 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 due 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.

                                                            ………………………………….J.
                                                           ( P. SATHASIVAM )


                                                            ………………………………….J.
                                                          ( J. CHELAMESWAR )
New Delhi;
July 3, 2012.

                     CORRIGENDUM(dated 13th July, 2012)

Page NO.17, Para No.24, Line No.6-7 of para,   “FOR 'Prior to  1955  Act  of
Tamil Nadu, the above mentioned two enactments'.   READ Stands deleted.  And
Page NO.22, Para No.30, Line No.2-3 of para  FOR 'under the  Letters  Patent
at Her Majest dated 17th March, 1866 was observed'  READ 'under the  Letters
Patent of Her Majesty dated 17th March, 1866 was abolished.'
-----------------------
*      Section 52 of the Transfer of Property Act
            “52. Transfer of property pending suit relating  thereto.—During
   the pendency in any court having authority within  the  limits  of  India
   excluding the State of Jammu  and  Kashmir  or  established  beyond  such
   limits by the Central Government of any suit or proceeding which  is  not
   collusive and in which any right to immovable property  is  directly  and
   specifically in question, the property cannot be transferred or otherwise
   dealt with by any party to the suit or proceeding so  as  to  affect  the
   rights of any other party thereto under the decree or order which may  be
   made therein, except under the authority of the court and on  such  terms
   as it may impose.
            Explanation.—For the purposes of this section, the pendency of a
   suit or proceeding shall be deemed to  commence  from  the  date  of  the
   presentation of the plaint or the institution  of  the  proceeding  in  a
   court of competent jurisdiction,  and  to  continue  until  the  suit  or
   proceeding has been disposed of by a final decree or order  and  complete
   satisfaction or discharge of such decree or order has been  obtained,  or
   has become unobtainable by reason of the  expiration  of  any  period  of
   limitation prescribed for the execution thereof by any law for  the  time
   being in force.”



[1]    28.  Stamping documents inadvertently received – No document which
ought to bear a stamp under this Act shall be of any validity unless and
until it is properly stamped.

               But, if any such document is through mistake or inadvertence
received, filed or used in any Court or office without being properly
stamped, the Presiding Judge or the head of the office, as the case may be,
or, in the case of a High Corut, any Judge of such Court, may, if he thinks
fit, order that such document be stamped as he may direct; and, on such
document being stamped accordingly, the same and every proceeding relative
thereto shall be as valid as if it had been properly stamped in the first
instance.

3 [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 is recorded 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.

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