The main legal point established in the judgment is that the rejection of a plaint for non-payment of deficit court fees falls within the scope of Order 7 Rule 11(c) CPC, entitling the plaintiffs to a refund of court fee under Section 66(1) of the Act.

1. The short question which arises for consideration in this revision is as to whether the petitioners/plaintiffs are entitled to refund of Court fee paid on the plaint in O.S.No.415 of 2000 on the file of the Sub-Court, Tiruppur.

2. Brief Facts:-(i) The petitioners/plaintiffs filed a suit in O.S.No.415 of 2000 before the Sub-Court, Tiruppur praying for a Judgment and decree to declare the rent payable by the defendants for the suit premises at Rs.2.75 per sq. feet, to direct the defendants to pay a sum of Rs.1,25,967.47 together with subsequent interest at the rate of 12% and for costs. The petitioners valued the suit for the purpose of Court fee and jurisdiction at Rs.1,26,367.93 ps. and paid a total Court fee of Rs.9,933.25ps under Section 25(d) and Section 22 of the Tamil Nadu Court Fees and Suit Valuation Act, 1995 (herein after referred to as the Act). The Trail Court on examining the plaint averments, relief sought for and the valuation, issued a check slip inter alia stating that the declaration sought for in the plaint amounts to claim for enhanced rent and the provisions of Section 43(1)(b) of the Act are attracted and therefore the relief of declaration under Section 25(d) is not correct. The plaintiffs were given time to submit their objections to the check slip, it appears that the plaintiffs submitted their objections, which was considered by the Trail Court and rejected by order dated 04.10.2002 with further direction to remit the proper Court fees. As the order was not complied with the suit was dismissed by order dated 03.12.2002.

(ii) The plaintiffs filed I.A.No.791 of 2002 under Order 9 Rule 9 CPC with a prayer to restore the suit which was dismissed for non-payment of additional Court fees. In the affidavit filed in support of I.A.No.791 of 2002 it was pleaded that the third plaintiff was unwell and could not meet his lawyer to get the deficit court fee of Rs.3062.75ps., and as the stamp papers were not available the court fee could not be remitted, and tendered the deficit court fee along with the application by enclosing a calculation memo. The trial court by its order dated 13.08.2004 dismissed the application as not maintainable, by observing that the plaint was dismissed for non-payment of Court fees and noncompliance of conditional order passed on the check slip.

(iii) Thereafter the plaintiffs filed another application under Order 7 Rule 11 CPC read with Section 151 CPC with a prayer to refund the total court fee paid and permit the plaintiffs to file a fresh suit on the same cause of action. This application was returned by the Trial Court, by stating that when the suit was dismissed for default how the plaintiffs are entitled to refund of court fee when the plaint was not rejected under Order 7 Rule 11 CPC as to how permission to file fresh suit can be granted under Order 23 Rule 3 CPC without a prayer, more so when the suit is no longer pending and how two prayers can be sought for in a single petition.

(iv) The plaintiffs subsequently filed a review petition in I.A.No.438 of 2005 under Order 47 Rule 1 CPC read with Section 115 CPC to review the order in I.A.No.791 of 2003, stating that in the order passed in I.A.No.791 of 2003 it was stated that the petition is not maintainable as the suit was rejected but the subsequent petition was returned stating that plaint is not rejected, that the plaintiffs who are poor litigants have lost the court fee of Rs.9933.25ps., and as per the return in unnumbered CFR.No.85/05 dated 04.01.2005, I.A.No.791 of 2003 ought to have been allowed. The plaintiffs placed reliance on the decision reported in 2004(2)LW page 154. The review petition was dismissed by the Trial Court by order dated 28.12.2005.

(v) The plaintiffs have preferred the above Civil Revision petition under Section 115 CPC questioning the correctness of order dated 28.12.2005 in I.A.No.438 of 2005 in O.S.No.415 of 2005.

3. Contentions:-

The learned counsel for the petitioner submits that und