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Kathyee Cotton Mills Ltd. Vs. R. Padmanabha Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 29 of 1957
Judge
Reported inAIR1958Ker88
ActsCode of Civil Procedure (CPC) , 1908 - Sections 148 - Order 7, Rules 1 and 11
AppellantKathyee Cotton Mills Ltd.
RespondentR. Padmanabha Pillai and ors.
Appellant Advocate T.N. Subramonia Iyer, Adv.
Respondent Advocate K.K. Mathew, Adv.
DispositionApplication dismissed
Cases ReferredJagat Ram v. Kharaiti Ram
Excerpt:
civil - deficit court-fees - sections 148, 149 and order 7 rules 1 and 11 of code of civil procedure, 1908 - revision by defendant against order giving time to plaintiff to pay additional court fees - time for payment of deficit court fees can be enlarged from time to time under section 148 - sections 148 and 149 give absolute power and discretion to court to grant time or extend same - no doubt about bona fide intention of plaintiff - impugned order confirmed. - - 12. we must state at the outset that a proviso, like the one before us, does not exist, so far as we are aware, in any other high court. 13. before we discuss the merits of the contentions of both sides on this point, we may also state that we are satisfied that in this case there was a bona fide doubt as to the method of.....vaidialingam, j.1. this is a revision by the 1st defendant in o. s. 147 of 1956, sub court, parur (formerly o. s. 124/55 district court, parur) against the order dated 18-12-1956 giving time to the plain, tiffs to pay the additional court lees.2. it is unnecessary be state in detail about the nature of the suit or the reliefs asked for or how these reliefs are to be valued because there was a order on 23-1-1956 by the learned district judge, parur before whom the suit was then pending, directing the plaintiffs to correct the valuation and to pay the requisite court fee as indicated in the said order within two weeks.3. the plaintiffs filed a revision, c. r. p. 80/56 to the travancore-cochin high court against this order of the district court. in revision, mr. justice n. varadaraja iyengar.....
Judgment:

Vaidialingam, J.

1. This is a revision by the 1st defendant in O. S. 147 of 1956, Sub Court, Parur (formerly O. S. 124/55 District Court, Parur) against the order dated 18-12-1956 giving time to the plain, tiffs to pay the additional court lees.

2. It is unnecessary be state in detail about the nature of the suit or the reliefs asked for or how these reliefs are to be valued because there was a order on 23-1-1956 by the learned District Judge, Parur before whom the suit was then pending, directing the plaintiffs to correct the valuation and to pay the requisite court fee as indicated in the said order within two weeks.

3. The plaintiffs filed a revision, C. R. P. 80/56 to the Travancore-Cochin High Court against this order of the District Court. In revision, Mr. Justice N. Varadaraja Iyengar confirmed the order of the trial court and dismissed the O. R. P. with costs. The plaintiffs appear to have filed an application for amendment of the plaint, but the High Court gave the plaintiffs liberty to move the trial court for appropriate reliefs. Though the time granted by the lower court for payment of additional court fees had already expired on the date of the High Court's order, the learned Judge did not say anything about any extension of time for payment of court fees. But there appears to have been a stay of the operation of the trial court's order during the pendency of the C. R. P. in the High Court.

4. When the matter came back to the trial court, the plaintiffs pressed their claim for amendment of the plaint by withdrawing certain, reliefs. This was opposed by the defendants on the ground that the plaintiffs have no right to withdraw any reliefs after the order of the court directing him to nay court fees on the original reliefs claimed. The defendants also objected to the plaintiffs being given any further time for payment of court fees. It is enough to state that the trial court rejected the plaintiffs' request for amendment of the plaint by withdrawing certain reliefs.

5. With regard, to the opposition Of the defendants based upon the proviso to Order VII Rule 11, C. P. C., as applicable to this State, the learned Judge considered the same, and held that the plaintiffs must be given one move opportunity to comply with the order of the District Court dated 23-1-56 namely, to correct the valuation and pay the deficit court fee as directed therein. In this view, the learned Judge directed the plaintiffs to correct the valuation and pay the additional court fees on or before 2-1-1957 and further directed that in default of such compliance within the time given, the suit will stand dismissed.

6. It is against this order of the trial court that the 1st defendant has filed this C. R. P. It may also be stated that on 2-1-1957 the plaintiffs paid the additional court fees as directed by the order of the lower court and in all he has paid court fees of the value of Rs. 3,000/- including the-court fees initially paid at the time of filing the suit. As to whether the court-fees now paid is a sufficient compliance with the order of the District Court confirmed by Mr. Justice N. Varadaraja Iyengar, we do not say anything; because that matter does not arise in this C.R. P.

7. Mr. T.N. Subramonia Iyer, learned counsel for the 1st defendant-petitioner, has raised two contentions before us namely,

(1) The trial court has no power to give any extension of time for payment of court fees beyond 30 days in all; and

(2) The High Court not having extended the time when disposing of C, R. P. 80/56. the trial court has absolutely no power to grant any extension of time whatsoever.

8. Taking the. 2nd contention first, we have no hesitation in not accepting the same; because admittedly on the date of the order of the High Court namely, 26-10-56 the time granted by the trial court was already over. The learned Judge himself was giving leave to the plaintiffs to move the lower court for amendment of the plaint and fill these will necessarily take time in the trial' court. Further, the learned Judge specifically says that the plaintiffs 'should pay court fees a9 ordered by the court below, and I order accordingly', and these observations show that the learned Judge contemplated the plaintiffs paying court fees at some future time.

We are inclined to think that the learned Judge did not mention anything about further time being granted, because the learned Judge was specifically reserving the right of the plaintiffs to Dress their relief for amendment of the plaint and this itself will involve fresh arguments on both sides and refixation of time for payment of court fees that will be found ultimately payable by the plaintiffs. In so far as the learned Judge himself has not given any direction to the contrary, the High Court's order by itself does not stand in the way of the trial court granting any further time, if it has such power otherwise in 'law. Therefore, this contention of Mr. Subramonia 'Ayyar fails.

9. The first contention and the one which is very strenuously pressed before us, is regarding the power of the trial court to grant any extension beyond the period of 30 days. This contention is based upon the proviso incorporated to Order VII Rule 11 by the Travancore-Cochin High Court. Order VII Rule 11 says:

'The plaint shall be rejected in the following cases :--(a)................. (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the Court, fails to do so .

(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the court to supply the requisite stamp, paper within a time to be fixed by the court, fails to do so; (d)..............

(provided that the time granted under clauses (b) and (c) shall not exceed thirty days in all)

10. According to Mr. Subramonia Ayyar, the trial court, has only a power to grant the maximum period of thirty days for permitting the plaintiff to pay the additional court fees. His contention is that the plaintiffs had originally two weeks as per order dated 23-1-56. That period of two weeks was almost over on 6-2-56 when the High Court granted a stay of operation of the trial court's order. After the order of the High Court in C. R. P. 80/56 the plaintiffs will have only the unexpired portion, if any, of the two weeks originally granted by the trial court.

Mr. Subramonia Ayyar was prepared to say that the plaintiffs can pay even within a month of the order of the High Court. But in this case, the matter was posted on 10-12-56 for curing defects, and ultimately on 18-12-1956 the trial court gave time till 2-1-1957 to the plaintiffs to pay the court fees. As the period thus granted by the court exceeds the total period of thirty days in all, the learned counsel contends that the order granting an extension is illegal and one passed without jurisdiction and in the face of proviso, framed by the Travancore-Cochin High Court.

11. This contention is met by Mr. K.K. Mathew, learned counsel for the plaintiffs that there was a bona fide doubt as to the court fees payable and that was the subject-matter of a decision by the trial court and also by the High Court later on. The High Court had given the plaintiffs permission to amend the plaint and a disposal of that application took some time by the trial court and when that application was dismissed, his clients have paid the necessary court fees within the further time allowed by the trial court. According to Mr. Mathew, the proviso to Rule 11 of Order VII, C. P. C. is only in the nature of direction to the lower court as to how it should exercise its discretion and that it is not mandatory. Even otherwise, the court has got ample powers under Sections 148 and 149 of the C. P. C., for granting the necessary extension of time at the discretion of the court.

12. We must state at the outset that a proviso, like the one before us, does not exist, so far as we are aware, in any other High Court. During the course of arguments of this case it became clear that this proviso was specially incorporated by the Travancore-Cochin High Court after integration of the States of Travancore and Cochin, in view of a practice that was unfortunately very widely prevalent in one part of the State of plaints being filed on grossly inadequate stamps even when there was absolutely no doubt as to the court-fees payable on the valuation given. This practice resulted in considerable time being given as a matter of course by the courts to make up the deficiency and the inordinate delay that was necessarily caused by these proceedings.

13. Before we discuss the merits of the contentions of both sides on this point, we may also state that we are satisfied that in this case there was a bona fide doubt as to the method of valuation and payment of court fees. A perusal of the judgment of Mr. Justice N. Varadaraja Iyengar in C. R. p. 80/56 will show that the matters relating tp valuation and court fees, as stated by the plaintiffs, were not free from doubt. The learned Judge has very elaborately considered these points after notice to the learned Government Pleader and ultimately held against the plaintiffs and confirmed the order of the trial court. Therefore, it cannot be said that the initial payment of Rs. 97-8 by the plaintiffs was in any way mala fide. aS stated already, we are satisfied that the matter was not free from doubt. It may also be stated that the plaintiffs have paid a fairly very large amount within the short time further allowed by the trial court after disposing of the application filed by the plaintiffs for amending their plaint. All these will show that in this case the plaintiffs have been acting bona fide and in good faith.

14. Then the question arises as to the power of the trial court to grant an extension of time for the payment of court fees beyond the period of thirty days mentioned in the proviso to Order VII Rule 11 C. p. C. Mr. Subramonia Ayyar's contention is that Section 148 and Section 149 C. P. C. are mutually exclusive and that in the matter of court fees S. 148 will not apply. According to him, Section 149 is a special provision relating to court fees, and when there is such a special provision dealing with a particular matter, the provisions of Section 148, which are very general in nature, will not apply. Mr. Subramonia Ayyar further contends that Section 149 has to be read along with Rule 11 of Order VII C. P. C. and when the court has exercised its power of granting a total period of one month as prescribed in our Code, the court becomes functus officio.

He also invited our attention to the various sections and Orders in the C. P. C. where the expression 'at any stage' as used in Section 149, and the expression 'time' as used in Section 148, are to be seen. Even if Sections 148 and 149 are not mutually exclusive, the learned counsel contended, that granting time for payment of court fees, is not a period fixed or granted by the court for the doing of any act prescribed or allowed by the court. According to him, payment of court fees is not one prescribed by the Code, but by a special enactment namely, the Court Fees Act. On this basis he argued that the court has no power under Section 148 to extend the period fixed by a statute like the Court Fees Act. According to him, the period for payment of court fees is not fixed or granted by the court. He relied upon the provisions of Ss. 2 and 9 of the Travancore-Cochin Court Pees Act, II of 1125.

15. We have absolutely no hesitation in accepting the contention of Mr. Subramonia Ayyar that a court has no power under Section 148, C. P. C. to extend a period fixed by Statute and not fixed or granted by the court. It is not necessary for us to refer to the cases bearing on that point, because We are in entire agreement with this contention. But the question is whether the time granted for payment of court fees in this case is one granted by the court or by the Statute. No doubt, Section 2 of the Court Fees Act states that no document of the kinds specified in the I and II schedules of that Act shall be filed etc., in any court of justice, unless in respect of such document, there be Paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. This section only makes it obligatory on the part of the persons filing or exhibiting the documents mentioned therein to pay the necessary court fees indicated- in the Act, No doubt, it stands to reason, that when such documents are produced before the courts or other public offices they must bear the necessary court fees leviable on those documents.

16. Similarly, Section 9 of the Court Pees Act states that every question relating to valuation for determining the fee under that Act shall be decided by the court before which it is raised. The section further states that the Order of the court in the circumstances mentioned therein shall be final between the parties to the proceedings. The proviso to the said Section gives power to a court of appeal, revision or reference to reconsider the order of the lower court regarding the court fees and the power of the appellate court to collect the additional fees.

Section 9 only prescribes the duty of the court to decide the question of court fees and once a decision is taken, it becomes final at any rate, during the pendency of those proceedings in that court. That is, once a judicial decision has been given regarding the question of court fees, it cannot be raised over again before that court in the same proceedings and the appellate court if it disagrees with the view of the trial court on this point, is given the power to collect the additional Court fees within a time fixed by that court. There is also the power in the appellate court to dismiss the suit, appeal or application, in case of default of such payment.

17. We do not see how the provisions of Section 2 and Section 9 of the Court-Fees Act relied upon by Mr. Subramonia Ayyar, any way help this contention. The provision for payment of court fees is made in the Court-Fees Act. Ordinarily, full court fees must be paid on the day when a plaint or appeal or other proceedings are instituted in the courts. But there may be a very genuine hard case when the full court fees could not be paid, such as the non-availability of the stamps on the date of filing, or there may be really bona fide mistakes in the calculation of the proper court fee payable, or there may be cases where there will be a bona fide doubt as to the manner of valuation and the court fee payable. When subsequently after the period of limitation these amounts are made good, they will serve no purpose and the proceedings would have become barred but for the provision of Section 149 C. p. C.

18. We cannot accept the contention of Mr. Subramonia Ayyar that Section 148 and Section 149 C. P. C. are mutually exclusive. In our opinion, there is absolutely no conflict between Section 148 and Section 149. Section 149 specifically provides a right in the court, at any stage, to allow a party to pay the additional court fees and it further provides that upon such payments, the document, in respect of which such fee is payable, shall have the same force and effect as if such fee has been paid in the first instance. Section 149 gives power to the court to allow a person to pay the deficit court fees at any stage which means including the stage of an appeal. Section 149 deals with the initial stage of allowing time, at any stage, for payment of the additional court fees.

Section 148 on the other hand, comes into play when once the time has been already fixed or granted by the court, not only in matters of court fees, but also in all other cases and the court is given the power to enlarge such period originally fixed or granted even though the period originally fixed or granted may have expired. Therefore, we do not see any sort of conflict or exdusiveness between the two sections. A party is not, as of right, entitled under Section 148 to get an extension or an enlargement of a period fixed or granted by the court. That is a matter entirely within the discretion of the court, though no doubt, such discretion should be exercised Judicially and not capriciously or arbitrarily.

19. Then the question arises whether the time granted for payment of deficit court fees is a period fixed or granted by the court for the doing of any act prescribed or allowed by the Code within the meaning of Section 148 C. P. C. Mr. Subramonia Iyer referred us to the decision of the Full Bench of the Allahabad High Court reported in Jagjit Singh v. Sankatha Singh, AIR 1950 All 675 (A). That was a case arising under the U. P. Agriculturists Belief Act XXVII of 1934. Under Section 16 of that Act, certain special rights were given to the mortgagor and it also stated that the courts shall order the applicant to deposit any balance amount 'within a fixed period' rand the said section also provides for the consequences of non-payment within the time. The question arose whether once the time has been fixed by the court under that Act, it was open to the court to extend the period originally fixed. The learned Judges of the Full Bench held that Section 148 of the C. P. C. does not give power to the court to extend the period already fixed under Section 16 of the U. P. Act. The learned Judges observe at page 681 as follows,--

'Section 148, C. P. C. is applicable only to extension of time where a period is fixed for doing of an act prescribed by the Code. It does not apply to a case where the period is fixed under any other statute. Nor can Section 151 which saves the inherent powers of the Court, be used for extending the period fixed under Section 16 Agriculturists' Relief Act, for payment of the mortgage money. This is a matter for which provision is made by the statute and though Section 16, Agriculturists' Relief Act, does not expressly say that the Court cannot extend the time fixed for payment we have held that the omission is deliberate.'

We respectfully agree with the reasoning of the learned Judges that Section 148 C. P. C. will not apply to cases where a period is fixed under any statute. In fact we have stated this earlier in the judgment. This decision will not help Mr. Subramonia Ayyar in his present contentions.

20. Section 149, as stated earlier, gives power to the court to allow a party to make good the deficiency. This means that the court has got power to grant time and Section 148 gives an additional power to enlarge or extend the time originally granted even though the time has expired. The consequences of a non-payment of the deficit court fees are provided for under Rules 12 and 13 of Order VII, C. P. C. Rule 11 (b) and (c) contemplate the Court giving time to comply with its requirement. The expression used in Clause (b) is 'to correct the valuation within a time to be fixed by the court' and the expression used in Clause (c) is 'the plaintiff on being required by the court to supply the requisite stamp paper within a time to be fixed by the court.'

Therefore, it is clear that there is a time fixed by the court both under Clauses (b) and (c) of Rule 11 read with Section 149. If that is so, it is not possible to appreciate as to why that is not a 'period fixed or granted by the court for the doing of any act prescribed or allowed by this Code'. Even taking Section 149, when time is granted, it will be a period granted by a court. Expression 'prescribed' in Section 148 will mean also prescribed by rules, as per the definition under Section 2, Clause 16. Even a time fixed under Clause (c) of Rule 11 of Order VII, will be a period fixed under Section 148 and as such, court will have power to extend it, if it otherwise deems fit to do so.

21. That time for payment of deficit court fee under Rule 11 (c) of Order VII can be enlarged from time to time under Section 148 has been held by a Bench of the Calcutta High Court in Mahammad Fateh v. Saradindu, AIR 1936 Cal 221 (B). To a similar effect is the judgment of the Madras High Court in Venkanna v. Atchutaramanna, AIR 1938 Mad 542 (C). These cases lay down that the power to grant extension rests in the court either under Section 148 or Section 149 C. P. C. and that under either of these Sections, the question is one of court's discretion and not the plain-tiff's right. We may also refer to a Bench decision of the Cochin High Court reported in Varied Thomas v. Divakaran 39 Cochin 393 (D).

The learned Judges there held that the question of payment of additional court fee, if and when ordered by court, is governed not by the provisions of the Court Fees Act, but by the provisions of the C. P. C. With respect, we agree with the decisions mentioned above, and it is unnecessary to refer to the several other decisions on this point as to the applicability of Section 148. To conclude, in our opinion, the time granted by the court, under Section 140, read with Order VII, Rule 11 (c), is a period fixed or granted by the court, within the meaning of Section 148 C. P. C., and the court has got power to enlarge or extend the time originally fixed or granted by it.

22. Can it be said that the proviso to Order VII, Rule 11 here stands in the way of the exercise of the court's powers under Section 148? We think not. In our view Ss. 148 and 149 give an absolute power and discretion to the court to grant time and later extend the same to such period as it may think fit. In our view, the proviso is more in the nature of guidance or a direction as to the period to which the court can exercise its discretion. It is not in any way, mandatory in the sense that any act done in contravention of the same will be a void or an illegal act. As stated earlier, the object of the proviso appears to have been only to put a check on the exercise of undue indulgence in favour of even undeserving parties. That it is not mandatory is to be seen from the fact that no penalty is attached in the said proviso.

Even otherwise, a rule or a proviso to a rale, can be framed under Section 128 only in such a way as not to be inconsistent with the provisions in the body of the Code. When Section 149 gives the Initial power to grant time and Section 148 gives absolute power later on to extend or enlarge the period already granted, any restriction placed upon the exercise of the power of the court will amount to being In conflict with the sections of the Code. Surely, we do not expect the Travancore-Cochin High Court to have intended to frame a proviso to a rule quite opposed to the provisions of the Code. Considering the proviso from this point of view, the object must have been only as a sort of guidance to the subordinate courts and not certainly intended to be mandatory provision.

23. In this view, we hold that though it would have been quite proper for the court not to have exceeded the time limit prescribed under the proviso, we cannot agree that granting of time beyond the said period is in any way illegal or beyond the powers Of the court. In fact, that power is already there in the court under Section 148 C. P. C. We have already considered the question of bona fides of the plaintiff's in this matter, and we have held in their favour.

24. We must very strongly comment about the practice prevailing in some parts of the State of filing plaints on grossly inadequate court fees even when there is absolutely no doubt or dispute regarding the court fees payable. We would like to draw the attention of the courts that in the matter of granting time, courts will have to apply their mind and exercise a judicial discretion after satisfying themselves about the reasons for the non-payment of court fees at the proper time and not grant time as a matter of routine or automatically. No doubt the discretion must be exercised judicially and not capriciously or arbitrarily. The Madras High Court in Bala Chengiah v. Subbayya, AIR 1939 Mad 200 (E) observes as follows:--

'Unless there are exceptional circumstances such as an inability to purchase stamps owing to a lack of stock in the depot, the presentation of a plant with such a ludicrously inadequate court-fee is a most reprehensible practice ........ Conceding that when there has been a bona fide mistake in calculating the court-fee, the court will ordinarily allow sufficient time for the plaintiff to procure the necessary funds in order to pay the balance, such considerations do not arise when the plaintiff has shown his contempt for the law by putting on his plaint a court-fee which on no possible view of the rules would have any real relation to the proper fee. To my mind the proper course, in the event of such an unwarrantable procedure being adopted without adequate excuse, is to return the plaint for presentation within 24 hours'.

We may also refer to a Bench decision of the Allahabad High Court in Shri Krishna v Saraswati Devi, AIR 1950 All. 499 (P). The learned Judges observe at page 499 as follows:--

'The practice of filing memoranda of appeal immediately prior to the end of the period of limitation bearing a court fee which is known to be insufficient has been severely condemned in a number of cases ............ In Brijbukhan v. Tota Ram, ILB 50 All 9SO: (AIR 1929 All 75) (G), Sulaiman J. as he then was was of opinion that such an attempt to get round the provisions of the Court-Pees Act should not be tolerated .... With great respect I agree with that opinion. The great weight of authority is in favour of the view that the Court has, under Section 149 of the Code, a full discretion in the matter ... ............ The cases will be found in ILR 50 All 980: (AIR 1929 All 75) (G), and Jnanadasundari v. Madhabchandra, ILR 59 Cal 388: (AIR 1932 Cal 482) (H), and that discretion should, in my opinion, only be exercised where the court is satisfied that sufficient grounds exist for the full court-fee not having been paid in the first instance, for the effect of extending the time as to deprive the respondent of the right which otherwise arises from the fact that an appeal not filed in due time with, the proper court-fee is barred. The inability Of the appellant to find the requisite money is not, in my opinion, save perhaps in very special circumstances as, for example, where he has been robbed, sufficient ground for extending the period for payment.'

Further a Pull Bench of the Lahore High Court, in the decision reported in Jagat Ram v. Kharaiti Ram, AIR 1938 Lah 361(1) had to consider the scope of the powers of the Court in exercising its discretion under Section 149 read with Order VII Rule 11 C. P. C. and the effect of that decision is that a discretion under Section 149 C.P.C. cannot be exercised in favour of a litigant who is guilty of contumacy, or positive mala fides, or reasons of a similar kind.

We are in entire agreement with the reasoning of the learned Judges in the decisions cited above regarding the scope of Sections 148 and 149 read with Order VII Rule 11 C p. C.

25. In the result, the order of the learned Judge complained against is confirmed and this C. R. P. is dismissed with costs of the plaintiff-respondents, aS the matter had to come before a Full Bench in view of the objections of the petitioner to the grant of time by the lower court,we fix the costs in the sum of Rs. 100/-.


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