1. First petitioner is a plaintiff in a suit for recovery of possession of land. Mesne profits were determined, after the decree, on a petition filed by him, for Rs. 260 and he was, on 16th April, 1946, the date on which the petition was disposed of, directed to pay additional court-fee on or before 23rd April, 1946. The District Munsiff made a rather unusual direction that if he failed to do, the petition would stand dismissed. Petitioner, after the re-opening of the Court after the recess, filed an application on 24th June, 1946, praying for extension of time on the ground of illness. This application, which was filed under Section 151, Civil Procedure Code, was dismissed on 18th September, 1946, by the same District Munsiff, on the short ground that he had no power to extend time or to excuse the delay.
2. The learned District Munsiff relied on a decision of Wadsworth, J., in Sripathi Baliah v. Ramayya : AIR1941Mad706 . That decision related to the setting aside of an ex parte decree on terms, on condition that one party paid Rs. 15 within a month, and in default the appeal would stand dismissed with costs. There was some mistake committed by the Bench clerk who wrote down Rs. 12 instead of Rs. 15, and neither party was present at the time the order was pronounced. The District Judge held there was a bona fide mistake, and extended the time. A revision petition was dismissed by the High Court. Reliance was placed on the following observation of Wadsworth, J.:
When a Court has granted time within which a payment must be made and has declared that in default of payment within the time specified the proceedings will stand dismissed, there is in my opinion, no power under Section 148 of the Civil Procedure Code after the date on which those proceedings would stand dismissed, to extend the time in which the payment was to be made.
I do not think that expression of opinion extends to cases of payment of additional court-fee. It was intended to apply to cases where suits are restored to file or ex parte orders set aside on certain specified terms requiring a payment to be made within a certain time.
3. The governing section is clearly Section 11 of the Court-Fees Act, which specifically provides for cases such as these. It lays down that:.if the additional fee is not paid within such time as the Court shall fix, the claim for the excess shall be dismissed, unless the Court, for sufficient cause, extends the time for payment.
The old Section 11 did not provide for an extension of time for sufficient cause. There is no decision directly in point, and in my own experience, I have not come across a single order by a Court requiring a deficit court-fee to be paid, stipulating at the first time of call that for failure to pay the court-fee by a fixed date, the suit or petition should stand dismissed with costs. Section 11 clearly confers, quite apart from Section 148, Civil Procedure Code, a statutory discretion on a Court to extend the time for payment, if the court-fee is not paid within the time prescribed. I do not think that a Court either can or should deprive itself of this discretion in anticipation by stipulating that in any circumstances the suit will be dismissed if the additional court-fee is not paid within the time prescribed. For the discretion conferred by Section 11 to come into operation there must be an application for extension tendering a sufficient cause, on which a judicial mind has to be brought to bear. Therefore, such an order as that passed by the District Munsiff, at any rate so far as the requirement to pay additional court-fee is concerned, is, I consider, improper, and also not contemplated by Section 11.
4. It is urged that petitioner should have gone up in appeal to the District Court against the decree dismissing his petition for mesne profits and not have come up here in revision. I am unable to accept this contention, as the jurisdiction of the District Munsiff was invoked under Section 151, Civil Procedure Code, and he felt himself unable and helpless to do anything in the matter, fettered as he thought he was by his own previous order. In the circumstances, it can scarcely be said that this revision petition does not lie.
5. Coming to the sufficiency of reason, this is clearly not a case of wilful default on the part of a plaintiff, who has after much trouble succeeded in getting an executable decree for Rs. 260. It is not likely that he would wilfully and intentionally omit to pay a small sum of about Rs. 30 as court-fee to make his decree executable. I think, in the circumstances the plea that he was ill can be accepted as a sufficient reason.
6. In the circumstances, I allow seven days' time for payment of the deficit court-fee from the date on which the records are received in the lower Court. In the circumstances, the parties to this petition will bear their own costs.