JUDGEMENT

JYOTI SINGH, J. (ORAL)

1. Petitioner has filed the present revision petition laying a siege to an order dated 20.08.2019 passed by the Trial Court by which the application filed by the Petitioner under Order VII Rule 11 CPC has been dismissed. Petitioner herein is the Defendant before the Trial Court while the Respondent is the Plaintiff and parties hereinafter are referred to by their litigating status before the Trial Court.

2. From the facts captured in the revision petition it emerges that Defendant preferred a suit bearing No. 29/2014 against the Plaintiff herein for recovery of possession, arrears of rent, damages/mesne profits, use and occupation charges and permanent and mandatory injunction, wherein Plaintiff admitted that he was in possession of the suit property albeit by virtue of having made part payment towards purchase of the property and sought protection under Section 53A of Transfer of Property Act, 1882. The suit was decreed on 28.0.2015 and all reliefs, save and except, the relief of mandatory injunction were granted in favour of the Defendant. Both parties filed cross- appeals. Defendant appealed against the non-grant of mandatory injunction, but the appeal was withdrawn by her while Plaintiff sought recovery of possession etc. and the appeal was dismissed vide judgment dated 16.05.2018, with an observation that Plaintiff had no independent right in the suit property and he was only a tenant until termination of tenancy vide legal notice dated 01.10.2013.

3. Plaintiff thereafter filed the suit bearing No. 1305/2016 on 03.10.2016, seeking declaration, specific performance and permanent injunction, from which the present petition arises. As per the Defendant, suit was filed one day before expiry of limitation period although summons were not served upon her, seeing the matter in the cause list, she accepted summons and thereafter filed an application under Order VII Rule 11 CPC, seeking rejection of the plaint inter alia on the ground that while filing the suit, court fee was not affixed by the Plaintiff and it was only on 23.05.2017 that the court fee was paid i.e. after 08 months of expiry of the limitation period for filing the suit, despite the fact that it was not the case of the Plaintiff that he had no money to pay the court fee.

4. The application was opposed by the Plaintiff and with respect to the court fee it was urged that the Court had granted extension of time to file the court fee and it was with permission of the Court that the court fee was deposited by the Plaintiff and thus the filing would relate back to the date of institution of the suit and there was no question of the suit being barred by limitation.

5. The Trial Court after hearing the parties dismissed the application under Order VII Rule 11 CPC on the ground that the question of limitation was a mixed question of fact and law and could only be decided by evaluating evidence led by the parties. Insofar as the court fee is concerned, the same was filed on 23.05.2017 after the Court had granted extension of time to the Plaintiff to do so and the Court was well within its powers under Section 149 CPC to enlarge the time for filing the court fee. Trial Court also observed that since court fee was already taken on record by an earlier order, the same shall have effect as if the same was filed at the time of filing the suit.

6. Counsel for the Defendant vehemently contends that the suit would be deemed to be instituted on the date when the court fee is paid and since the suit itself was instituted one day before the expiry of limitation period and court fee was filed by the Plaintiff much later, plaint be rejected on ground of limitation. It is argued that the Trial Court committed serious irregularity in exercising its jurisdiction to dismiss the application Order VII Rule 11 CPC since it was not the case of the Plaintiff that he had no money to pay the court fee and thus no circumstances existed which called for exercise of the dis