C.R.P.(MD)No.1668 of 2009

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 23.02.2021

CORAM

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

C.R.P.(MD)No.1668 of 2009

R.V.Perumal Asari

: Petitioner

Vs.

1.Abdul Salam (Died)

2.The Branch Manager,

Tamil Nadu Small Scale Industrial

Development Corporation Limited,

Virudhunagar – 626 003.

3.Daulath Salam

4.Arifa Sadat

5.Sailaja Banu

: Respondents

(R3 to R5 are brought on record as legal representatives of

deceased first respondent vide order of this Court, dated 28.07.2020

made in C.M.P.(MD)Nos.6122, 6126 and 6128 of 2019)

PRAYER:- Civil Revision Petition filed under Section 115 of Code of

Civil Procedure, to set aside the fair order and decreetal order,

dated 02.03.2009 made in I.A.No.268 of 2008 in O.S.No.81 of 2008 on

the file of the District Munsif Court, Aruppukottai.

For Petitioner

:Mr.V.Mariselvaraj

R1

:Died

R2

:No Appearance

For R3 to R5

:Mr.M.M.Iqbal

ORDER

This revision is against the order made in I.A.No.268 of 2008,

in and by which, the trial Court dismissed the application for

extension of time for payment of deficit Court fee.

2.The facts, that lead to filing of this revision, are as

follows:

2.1.The plaintiff sued for specific performance of an agreement

of sale entered into between him and the first defendant on

25.10.2004. The suit property, admittedly, belonged to the second

defendant and it is stated that it was allotted to the first

defendant. The prayer of the plaintiff is to direct the first

defendant to compel the second defendant to execute the sale in his

favour and thereafter, execute a sale in favour of the plaintiff.

The Court pay fee payable in the suit was stated to be

Rs.6,826.50/-. However, only Rs.41/- was paid along with the

plaint.

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C.R.P.(MD)No.1668 of 2009

2.2.Though the agreement of sale is dated 25.10.2004 and it

prescribed the period of two months for performance, the notice of

demand itself was issued by the plaintiff only on 27.11.2007, ie.,

nearly after expiry of three years one month from the date of the

agreement, it is claimed that since no sale deed was obtained by the

first defendant from the second defendant, the plaintiff could not

seek specific performance earlier.

2.3.Be that as it may, the conduct of the plaintiff in filing

the suit on 17.12.2007 by paying Rs.41/- as Court fee instead of

6826.50/- needs further probe. The plaint was presented on

17.12.2007 and the trial Court, on 20.12.2007 returned the plaint

requiring the plaintiff to make good the deficit Court fee. The

plaint was re-presented on 21.01.2008 with an endorsement, “order

complied with, re-presented”. Again on 22.01.2008, the trial Court

returned the plaint with an endorsement “Earlier defects have not

been rectified”. The plaint was again re-presented for the second

time on 20.02.2008, with an endorsement “Deficit Court has been paid

along with petition to condone delay under Section 149 of CPC”. The

Court directed the Registry to number the suit subject to

maintainability and issue notice in the application for condonation

of delay in payment the deficit Court fee, namely, I.A.No.268 of

2008.

2.4.The reason assigned in that application is that the

plaintiff had financial difficulties. As alright pointed out, the

suit is one for specific performance and the plaintiff is expected

to be ready and willing through out the period. Whether a

plaintiff, who seeks time to pay Court fee on the ground that he

experiencing financial difficulties, could be said to be ready and

willing is a larger question. We need not go into the said question

at this stage, as I am convinced that the attempt of the plaintiff

is not bona fide.

3.Section 149 of CPC empowers the Court to condone the delay in

payment deficit Court de hors the question of limitation. Order 7

Rule 11(C) of CPC also enables