The discretion to allow the payment of deficit court fee under Section 149 of the Civil Procedure Code is over and above the application under Order 7, Rule 11, and the non-filing of such an application is not fatal.

1. The Petitioner/Respondent/Plaintiff has filed this Civil Revision Petition as against the order dated 30.04.2009 in I.A.No.74 of 2008 in O.S.No.91 of 2007 on the file of the Principal District Court, Krishnagiri.

2. The trial court in I.A.No.74 of 2008 in O.S.No.91 of 2007 on 30.04.2009 has among other things held that the Revision Petitioner/Plaintiff neither paid the Court fee within the period of limitation nor filed Application under Section 149 of the Civil Procedure Code to extend time for payment of deficit Court Fee and opined that the defect of non filing of application under Section 149 of the Civil Procedure Code to extend the time of payment of deficit Court Fee cannot be cured and resultantly, allowed the Interlocutory Application praying to reject the plaint under Order 7, Rule 11 of Civil Procedure Code without costs.

3. According to the Learned counsel for the Revision Petitioner/Plaintiff, the order of the trial court in I.A.No.74 of 2008 in O.S.No.91 of 2007 dated 30.04.2009 in allowing the Application praying to reject the plaint under Order 7, Rule 11 of Civil Procedure Code is not a correct one in the eye of law and as a matter of fact, the trial court ought to have disposed of suit on merits.

4. The Learned counsel for the Revision Petitioner/Plaintiff urges before this Court that the Revision Petitioner/Plaintiff filed O.S.No.91 of 2007 on the file of the trial court for the relief of specific performance of Sale Agreement dated 18.02.1998 which contains the last endorsement of payment on 02.04.2004 and as such, the period of limitation expires on 02.04.2007 and in reality, the suit has been filed on 30.03.2007 by affixing a Court fee of Rs.2,61,015/- instead of Rs.2,72,776/- i.e., with a deficit Court fee of Rs.11,761/- and the non payment of deficit Court fee of Rs.11,761/- is a clerical mistake and the plaint has been returned by the trial court on 11.04.2007 granting one month time for compliance of certain defects including the payment of deficit Court fee and later, the plaint has been represented on 17.12.2007 with original Sale Agreement along with a petition to condone the delay of 78 days in representing the suit and the same has been condoned and later, the same has been numbered and summons has been issued to the Defendants who entered appearance and projected Written Statement and subsequently, I.A.No.74 of 2008 has been filed under Order 7, Rule 11 praying to reject the plaint and I.A.74 of 2008 has been filed belatedly when the suit has been ripening for trial.

5. It is the submission of the Learned counsel for the Revision Petitioner that failure to file separate Application as per Section 149 of Civil Procedure Code for extension of time in paying Court fee will not apply the case of the plaint resulting in Court to reject the plaint and before the trial court, when the suit has been represented along with an Application under Section 148 read with Section 151 of Civil Procedure Code for condoning the delay in representation of plaint after complying with the Defendants and the said Application being allowed, the Court has exercised its discretion and condoned the delay in paying the deficit Court fee and has numbered the suit and therefore, the contra view taken by the trial court in allowing I.A.No.74 of 2008 and ordering rejection of plaint is not a legally sustainable order in the eye of law which needs to be rectified by this Court and therefore, prays for allowing the Civil Revision Petition to prevent an aberration of justice.

6. Conversely, it is the contention of the Learned counsel for the Respondents/Petitioners/Defendants 7 to 10 that the rejection of plaint order in I.A.74 of 2008 by the trial court is a deemed Decree and as such, the Civil Revision Petition under Article 227 of the Constitution will not lie.

7. It is the further contention of the Learned counsel for the Respondents that a plaint can be rejected even at the time of delivering Judgment and further