Petition under Section 151,CPC to condone delay will not cure defect in praying for relief under Section 149,CPC.

This CRP is filed by the defendant as against the dismissal of the I.A., filed by him under Order 7, Rule 11(c) CPC, to reject the plaint as proper court fee has not been paid as stipulated in the provision and the same has been paid after the period of limitation of the suit.

2. The suit has been filed by the respondent/plaintiff for recovery of amount based on a promissory note allegedly executed by the petitioner/defendant. Pending the suit the defendant filed the I.A., stating that the suit is barred by limitation. According to him, the suit has been filed on 26. 2005 and on the date of presentation of the plaint, the sit has been filed with insufficient stamp of Rs.100/= only. Hence the suit was returned on the next day i.e, 26. 2002 for payment of proper court fee by granting two weeks time for re-presentation. On 19. 2005 the plaint was represented along with an I.A.No:983 of 2005 dated 20.9.2005 to condone the delay of 69 days in representation of the plaint only. On that the deficit court fee was paid and the plaint was ordered to be numbered by the trial court. But no application has been filed seeking permission of the court to present the plaint with deficit court fee on 26. 2005 since the deficit court fee of Rs.4663/= has been paid only on 19. 2005 i.e,. beyond the period of limitation and therefore the plaint is liable to be dismissed.

3. However the trial court dismissed the said Interlocutory Application holding that limitation aspect could be raised at the time of trial of the suit

4. Learned counsel for the revision petitioner contended that in the absence of a specific application filed under Section 149 CPC to condone the delay in payment of deficit court fee and even when there is no prayer for extension of time in paying the deficit court fee in the I.A., filed by the plaintiff to condone the delay of 69 days in representing the plaint, the plaint ought to have been rejected by the trial court for non compliance of Order 78 Rule 11(c). The trial court also failed to appreciate the law laid down by a Division Bench of this court in 2003 (3) LW. 803 wherein this Court held that there must be a separate petition under Section 149 CPC and the defendant should be heard before condoning the delay especially when the plaint is represented after the period of limitation fixed for filing the suit.

5. It is not in dispute that the suit has been filed on 26. 2005 with the deficit court fee of Rs.100/= and the same was returned on 26. 2005 by granting two weeks time to represent the plaint with proper court fees. But the plaint has been represented only on 19. 2005 and deficit court fee was paid on the same date. On the said date of representation of the plaint, the plaintiff has taken out an Interlocutory Application under Section 151 CPC to condone the delay in representing the plaint. But admittedly, there is no petition filed under Section 149 CPC seeking extension of time for payment of deficit fee or to condone the delay in payment of such deficit court fee. Admittedly in the present case, the suit being filed on a promissory note dated 26. 2002, the limitation expires on 26. 2005 and hence the subsequent payment of court fee on 19. 2005 without there being any specific relief claimed under Section 149 CPC, will not save the limitation and the suit cannot be revived.

6. In V.N. Subramaniyam Vs. A. Nawab John and others, reported in 2007 (I) MLJ 669, this court had an occasion to decide similar issues and held as follows:-

"7. A perusal of the impugned orders and the typed set of papers would clearly show that the delay condonation applications have not been field under Section 149 CPC or a separate prayer has been included to pay the deficit court fee with such delay. In fact the said applications have been filed under Sections 148 and 151 CPC to condone the delay of representation alone. The decisions in Padmidikkala Sitharamayya and others Vs. Ivaturi Ramayya and another (1938 MLJ 515 DB) a