The power to enlarge time for remittance of court fees can be exercised even after the expiry of the time originally fixed.

1. When a plaintiff failed to remit deficit courtfees, the suit was dismissed with costs. His application for restoration of the suit as per Order IX R.9 of the Code of Civil Procedure (for short'the Code') was also dismissed. Then he filed another application, after remitting the deficit court fee, for enlargement of time for payment of deficit court fee. The lower court allowed the application by the impugned order and restored the suit. This revision is at the instance of the defendant.

2. Facts which are not disputed are these; The trial court found that court fee in full bad not been paid hence the plaintiff was directed to pay deficit court fee before 14-11-1986. The time was extended on five occasions and it was finally posted to 31-3-1987. On that day the plaintiff was heard but as the deficit court fees were not paid, the court dismissed the suit. The present application, quoting S.148,149 and IS1 of the Code, was filed after the dismissal of the other application for restoration of the suit filed under Order IX R.9 of the Code. Learned Munsiff noted that the reasons for not remitting deficit court fees within the time allowed have not been disputed. Hence be felt that the application should be allowed since it is the just and reasonable course in the circumstances.

3. Two main contentions have been raised in this revision. The first is that, since the dismissal of suit was on merits he has the remedy to file an appeal. The second contention is that court's power to enlarge time cannot be exercised or even invoked when there is no suit or action pending. In support of the first contention, learned counsel brought my attention to the fact that a decree bad already been drawn up by the trial court subsequent to the dismissal of the suit and that toe suit was dismissed by pronouncing a judgment.

4. The snort judgment reads thus: "Additional court fee not paid. Plaintiff present in person. Heard. No valid explanation to offer. The only inference ('information') is that he has no more interest in the suit. Hence dismissed with costs". It is not necessary to consider whether dismissal of the suit consequent on non-payment of the deficit court fees will amount to a decree, in view of S.2 (2) of the Code which defines the word "decree". As per the said sub-section the decree "shall be deemed to include the rejection of a plaint". Order VII Rule H enjoins on the court to reject the plaint when the plaintiff fails to supply requisite stamp (court fee) within the time fixed by the court. The remedy of appeal is therefore implicit in it. This Court has held in Janaki Amma v. Krishnan (1978 KLT. 463) that neither the Code nor the Court Fee Act enables the court to dismiss a suit on merits for non-payment of court fees and in such cases "even if the court uses the word dismiss and purports to dismiss the suit itself, the same would in fact amount only to rejection of the plaint ". I have no reason to dissent from the aforesaid view.

5. The real question, therefore, is whether the court has power to enlarge or extend time on an application filed after the expiry of the time when no suit or action is pending. Learned counsel referred me to the decision of a single judge in Tarapada v. Nepal Gazi (AIR 1965 Calcutta 354) in which it is held that the court has no jurisdiction under S.148 to condone the delay and enlarge the time if the application has been filed after the expiry of the time originally fixed. The Supreme Court decision in Mahanth Ram Das v. Ganga Das (AIR. 1961 SC. 882) cited before the learned judge was distinguished in that application for extension of time was filed before the expiry of the time originally granted. The Supreme Court held in the said decision that the court is not powerless to enlarge time to do justice to a litigant if sufficient cause was made for extension. Of course, in the said case the party made the application for extension of time before the time fixed had run out, though the applicati