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Gandham Nagabhushanam and anr. Vs. Mohd. Asharafunnisa Bahebani and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1029 of 1958
Judge
Reported inAIR1960AP602
ActsCode of Civil Procedure (CPC) , 1908 - Sections 148, 149 and 151 - Order 7, Rule 11
AppellantGandham Nagabhushanam and anr.
RespondentMohd. Asharafunnisa Bahebani and ors.
Advocates:T. Veerabhadrayya, Adv.
DispositionPetition dismissed
Excerpt:
.....- revision petition filed in high court against order of subordinate court inter alia accepting a delayed plaint - held, court can condone delay and accept plaint under section 151. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits..........question concerning the act of acceptance of a document, viz., plaint after the date for representation with full court-fee has been fixed but exceeded, is involved in this revision petition. the plaint in the instant case was filed on 6-1-1958 based upon a promissory note executed on 21-6-1952. the promissory note had in it an endorsement of payment of rs. 5/- on 5-1-1955. as 5-1-1958 was a public holiday, the plaint was in time even though it was presented on 6-1-1958. but, as it was insufficiently stamped because it was affix-ed with re. 1/- stamp while the correct court-tee being rs. 12/-, it was returned on 7-1-1958, giving time for representation with full court-fee till the next day, viz., 8-1-1958.the plaint was actually represented on 5-2-1958 and accepted by the.....
Judgment:
ORDER

Munikanniah, J.

1. An interesting question concerning the act of acceptance of a document, viz., plaint after the date for representation with full court-fee has been fixed but exceeded, is involved in this revision petition. The plaint in the instant case was filed on 6-1-1958 based upon a promissory note executed on 21-6-1952. The promissory note had in it an endorsement of payment of Rs. 5/- on 5-1-1955. As 5-1-1958 was a public holiday, the plaint was in time even though it was presented on 6-1-1958. But, as it was insufficiently stamped because it was affix-ed with Re. 1/- stamp while the correct court-tee being Rs. 12/-, it was returned on 7-1-1958, giving time for representation with full court-fee till the next day, viz., 8-1-1958.

The plaint was actually represented on 5-2-1958 and accepted by the Court. While representing the plaint, the plaintiff filed I. A. No. 95 of 1958 to excuse the delay in re-presentation. However,' the court by its order dated 25-4-1958 made it clear that it accepted the plaint acting upon the powers vested in it under Section 149, C. P. C. and thereby purported to follow the rule laid down in Basavayya v. Venkatap-payya, AIR 1926 Mad 676. As against that order this revision petition is filed.

2. The above facts relating to the return of the plaint and re-presentation bring out that at the time when the plaint was returned on 7-1-1958, the learned Munsif acted under Section 149, C. P. C. The question therefore is that when time is granted and the plaint is not represented within that time, whether the Court can still purport to act under Section 149 C. P. C. and accept such a plaint, even though there has been delay in representation, or should it accept the plaint only after excusing the delay under Section 5 of the Limitation Act. The courses to be followed under each of these provisions, in my view, are distinct and distinguishable. Section 149, C. P. C. lays down:

'Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee and upon such payment the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance'.

This section would seem to leave no room for the ascertainment of any sufficient cause for any delay in representation, but to allow the deficit court-fee to be paid at any stage once the plaint has been filed within time. Therefore, the further argument advanced by the learned counsel for the petitioner that the liability to pay the court-fee would not be construed or considered as sufficient cause basing upon the decision in Wajid Ali v. Mt. Isar Bano, : AIR1951All64 (FB) and In re Khatumennessa Bibi, AIR 1934, Cal 659, has in my view no force and these decisions are inapplicable to the facts of the instant case.

3. The next point for consideration is whether it is always necessary in every case where time for re-presentation has been granted, an order granting time should be made under Section 148, C. P. C. It would be indeed not only desirable, but necessary that this step should be pursued, for such a course is calculated to avoid needless complications. But, when that has not been specifically done but there has been acceptance on the part of the court of the plaint, as in this case, the exact legal position arising therefrom needs to be ascertained. A reference to inherent powers of Court thus becomes inevitable.

It is not as though condonation of delay is al-together alien to the exercise of the powers con-ferred under Section 151 and that calling in aid of this inherent power is not unprecedented in such cir-cumstances. So viewing the case, that is where the time has been granted under Section 149, C. P. C, and re-presentation had been made after a delay of a few days but in fact there has been acceptance of that document as if full court-fee has been paid as from the date of filing, it appears to me that the lower court has acted under Section 151 C. P.C. and it cannot, therefore, be said to have acted outside its jurisdiction or with material irregularity so as to call for interference by this court.

4. In this view this petition fails and is dismissed. The other side is not represented and there will be no order as to costs.


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