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2013 Supreme(All) 2405
ALLAHABAD HIGH COURT
Ritu Raj Awasthi, J.
Ravindra Kumar Gupta & Ors. -Appellant
Versus
Rakesh Kumar Gupta & Another -Respondent
Civil Revision No. 103 of 2013
Decided On : 05-10-2013
For the Revisionist : Sudeep Seth
For the Respondent: A.P. Singh Gaur, Prashant Singh Gaur
Headnote:
COURT FEES - EXTENSION OF TIME - POWER OF COURT - COURT FEES ACT, 1870, SECTION 6 - CODE OF CIVIL PROCEDURE, 1908, ORDER VII RULE 11, PROVISO - The Court has the discretion to extend the time for payment of court fees, but this discretion must be exercised judiciously and for the ends of justice. The power given under Section 149 CPC is a judicial discretion and the Court is not bound to exercise it unless the applicant shows sufficient cause for the failure to pay the deficit court fee within the time provided by the Court or is under a bona fide mistake in payment thereof. The proviso to Order VII Rule 11 CPC clearly provides that the time fixed by the Court for correction of the valuation or supply of requisite stamp paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
Fact of the Case:
The plaintiff filed a suit in 2009 indicating the valuation as Rs. 18.00 lakhs on which insufficient Court fee was paid. The Trial Court framed an issue relating to undervaluation of the suit and non-payment of Court fee and directed the plaintiff to deposit the requisite Court fee. The plaintiff sought several adjournments for depositing the Court fee and the Trial Court granted last opportunity to the plaintiff to deposit the Court fee by allowing the adjournment, however, the plaintiff did not deposit the same. The Trial Court rejected the adjournment application and reserved the order on the application filed under Order VII Rule 11 CPC. The plaintiff submitted the Court fee along with an application for depositing of Court fee in the Court. The Trial Court allowed the application for depositing of Court fee at the cost of Rs. 500/- and refused to decide the application filed under Order VII Rule 11 CPC on merits on the premise that the Court fees have been received on record.
Finding of the Court:
The Trial Court failed to exercise its jurisdiction by not deciding the application filed by the defendants under Order VII Rule 11 CPC on merits. The Trial Court should not have allowed the application of the plaintiff to deposit the Court fee without recording any reason and satisfaction as required under the proviso appended to Rule 11 Order VII CPC.
Issues: Whether the Trial Court erred in not deciding the application filed under Order VII Rule 11 CPC on merits.
Ratio Decidendi: The proviso to Order VII Rule 11 CPC clearly provides that the time fixed by the Court for correction of the valuation or supply of requisite stamp paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. The Trial Court failed to consider the proviso to Rule 11 Order VII CPC and refused to decide the application filed under Order VII Rule 11 CPC on merit.
Final Decision: The civil revision is allowed. The order impugned dated 17.7.2013 passed in in Regular Suit No. 35 of 2009 (Rakesh Kumar Gupta Vs. Ravindra Kumar Gupta and Others) is set aside. The matter is remanded back to the Trial Court to decide the application (C-57) filed under Order VII Rule 11 CPC a fresh on merit in accordance with law.
Heard Mr. Sudeep Seth, learned counsel for revisionists as well as Mr. A.P. Singh Gaur duly assisted by Mr. Prashant Singh Gaur, learned counsel for respondents and perused the records.
2. The instant civil revision filed under Section 115 of the Code of Civil Procedure, 1908 (for short 'CPC') arises against the order dated 17.7.2013 passed by the learned Civil Judge (Senior Division), Court No. 24, Lucknow in Regular Suit No. 35 of 2009 (Rakesh Kumar Gupta Vs. Ravindra Kumar Gupta and Others) whereby the Court fee submitted on 24.4.2013 through the application (C-62) by the respondents-plaintiff was accepted without, there being any application for condonation of delay in filing the Court fee or extension of time to deposit the same and the application (C-57) filed under Order VII Rule 11 read with Section 151 CPC was rejected.
3. The legal question which cropped up in the present revision for consideration is whether the learned Trial Court was correct in accepting the said Court fee in absence of any application for condonation of delay in depositing the Court fee within the time provided by the Court or application for extension of time to deposit the same and without recording the satisfaction that plaintiff was prevented by any cause of exceptional nature from depositing the Court fee within time fixed by the Court.
4. The factual matrix of the present controversy relates to a suit for declaration and permanent injunction registered as Regular Suit No. 35 of 2009 (supra) which was filed on 20.1.2009. The valuation of suit was indicated as 18.00 lakhs on which insufficient Court fee of Rs. 700/- was paid. The issue relating to undervaluation of suit and non-payment of requisite Court fee was decided vide order dated 15.1.2011 directing the respondent no. 1-plaintiff to deposit the requisite Court fee in the light of Section 7 (iv) (a) of the Court Fee Act, 1870 (for short 'Court Fees Act') and do necessary pairvi within a week. The respondent-plaintiff was required to deposit the deficit Court fee of Rs. 1,35,407.50/-.
5. The learned Trial Court vide order dated 21.1.2011 had directed the respondent-plaintiff to comply the earlier order of depositing the requisite Court fee. Thereafter, repeated adjournments were sought by respondent-plaintiff for depositing the requisite Court fee and all such adjournments were allowed by the Trial Court. 14 such adjournments in continuation were taken by the respondent-plaintiff for depositing the requisite Court fee. On 04.11.2011, an application for amendment of plaint (A-45) was preferred by respondent-plaintiff wherein the assessed Court fee of Rs. 1,35,407.50/- was admitted by the respondent-plaintiff. The said amendment application remained pending for disposal till 03.09.2012 and the Trial Court repeatedly granted adjournments and it was finally heard and vide order dated 07.09.2012 was allowed.
6. The learned Trial Court vide order dated 06.11.2012 granted last opportunity to respondent no. 1-plaintiff to deposit the Court fee and had allowed adjournments but the respondent no. 1-plaintiff did not deposit the requisite Court fee. On 27.11.2012, the revisionist-defendant preferred application under Order VII Rule 11 CPC for rejection of plaint. No objection to the said application was filed by respondent-plaintiff. It was on 31.1.2013 that the learned Trial Court granted last warning to respondent no. 1-plaintiff to deposit the requisite Court fee, however, the Court fee was not deposited.
7. Thereafter, on 20.2.2013 the Trial Court rejected the application for further adjournment and observed that there is no justification for granting another opportunity to respondent no. 1-plaintiff for complying the earlier orders to deposit the Court fee. On 25.3.2013, the Trial Court heard the application (C-57) preferred under Order VII Rule 11 CPC and reserved the order. On 18.4.2013, the Trial Court again heard the application preferred under Order VII Rule 11 CPC and fixe
