Back
BOMBAY HIGH COURT
M.S. Sonak, J.
Bhavana Kirit Vora and Ors. —Petitioners
versus
Kushal Surendra Shah and Ors. —Respondents
Writ Petition No.6141 of 2017 with Writ Petition No.11511 of 2015 (NOB)
Decided on 11.3.2019
Counsel for the Parties:
For the Petitioners:Mr. Ashok Tajane, Advocate
For the Respondents:Mr. Sanjay Shinde, Advocate
IMPORTANT POINT
Order rejecting plaint Under Order 7 Rule 11 of C.P.C., for non-payment of additional court fees demanded is appealable as a decree and even a second appeal would lie under Section 100 of C.P.C.
Headnote:Civil Procedure Code, 1908 – Order 7 Rule 11 and Section 151 – Court Fees Act, 1899 – Section 7(iv)(c) – Rejection of plaint – Order rejecting plaint Under Order 7 Rule 11 of C.P.C., for non-payment of additional court fees demanded is appealable as a decree and even a second appeal would lie under Section 100 of C.P.C. – Time could be extended by trial Court irrespective of fact that remedy of appeal was also available – When there is no controversy as regards liability to pay demanded Court fees, quantum of Court fees an application simplicitor seeking extension of time to pay such Court fees can always be taken out under Section 151 of CPC – Plaintiff cannot be deprived of opportunity to prosecute their suit on merits on account of some marginal delay in payment of Court fees. (Paras 14, 15 and 18)
Writ Petition dismissed.
M.S. Sonak, J.—Heard Mr. Tajane, learned counsel for the Petitioners and Mr. Shinde for the Respondents.
2. Mr. Tajane, learned counsel for the Petitioners, at the outset seeks leave to withdraw the Writ Petition No. 11511 of 2015 instituted by the Petitioners to challenge the order dated 1st July, 2015 (Exhibit 40) in this Suit. He points out that this very order has also been challenged in the present Petition and therefore, he submits that leave be granted to withdraw the Writ Petition No. 11511 of 2015 with liberty to press the challenge in the present Petition. Though Writ Petition No. 11511 of 2015 is not on board today with consent of the learned counsel for the parties, the same is taken on board and disposed of as withdrawn with liberty to challenge the order dated 1st July, 2015 (Exhibit 40) in the present Petition. The Registry to therefore indicate Writ Petition No. 11511 of 2015 as disposed of by virtue of this order.
3. Rule.
4. Rule is made returnable forthwith with the consent and at the request of learned counsel for the parties.
5. The challenge in this Petition is to orders dated 31st March, 2017 (Exhibit 22), 31st March, 2017 (Exhibit 74) and 1st April, 2017 (Exhibit 76) made by the learned Civil Judge Senior Division, Niphad in Special Civil Suit No. 27 of 2012.
6. At the outset, Mr. Tajane, learned counsel for the Petitioners made it clear that the challenge to the two orders dated 31st March, 2017 (Exhibit 22) and 1st April, 2017 (Exhibit 75) is not being pressed, since,the said orders, are really consequential to the other orders or in any case the said orders relates to stay of the suit pending service upon some of the Defendants. Upon examination of the order dated 31st March, 2017 it is clear that the same were purely procedural orders and there is really no legal infirmity as such in making of said orders.
7. Mr. Tajane, however points out that the Petitioners also challenged the order dated 1st April, 2017 made below Exhibit 40. He submits that this is quite clear from the pleadings in the Petition, though in prayer clause (b) there is no specific reference to the order dated 1st April, 2017 (Exhibit 40). Accordingly he seeks leave to carry out the formal amendment. Leave is granted. Formal amendment to be carried out forthwith.
8. In this case, learned trial judge vide order dated 25th August, 2012 determined that appropriate Court fees were not paid along with Plaint and therefore granted 60 days time to the original Plaintiff to pay the deficit Court fees. However, since the deficit Court fees were not paid within prescribed period, the Plaint came to be rejected vide order dated 15th December, 2012.
9. The original Plaintiff then took out Civil Misc. Application No. 15 of 2013 (Exhibit 76) seeking for extension of time to pay the Court fees and consequently restoration to the suit. Thereupon the present Petitioners took out an application which came to be marked as Exhibit 40 objecting to the maintainability of Civil Misc. Application No. 15 of 2013 (Exhibit 76). By an order dated 1st April, 2017 the learned trial Judge rejected this Application (see Exhibit F, page 50 of the paper book). Further by order dated 1st April, 2017 the learned trial Judge allowed Misc. Application No. 15 of 2013 and extended the time for payment of Court fees and restore the Special Civil Suit No. 27 of 2012, since the deficit Court fees were paid by the original Plaintiff.
10. Mr. Tajane, learned counsel submits that an order rejecting the Plaint is “deemed decree” in terms of Section 2(2) of Code of Civil Procedure. He submits that only remedy to set aside such order is institution of an Appeal. He submits that since specific remedy by way of Appeal is provided under the Code, no application under section 151 of Code of Civil Procedure invoking the inherent powers of the Court was at all maintainable. He relies upon Mable vs. Dolores and Another AIR 2001 Kerala 353 and State of U.P. vs. Roshan Sing
