IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.12.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.727 of 2010 and M.P.No.1 of 2010 Sennan ... Appellant / Defendant vs. 1. Shoba 2. Rajkumar .. Respondents/ Plaintiffs This second appeal is filed U/Sec 100 of CPC against the judgment and decree dated 26.04.2010 passed by the learned Subordinate Judge, Perambalur in A.S.No.20 of 2009 confirming the judgment and decree dated 25.03.2009 passed by the learned District Munsif, Perambalur in O.S.No.229 of 2004. For Appellant : Mr.P.Valliappan For Respondents : Mr.R.Parthiban JUDGMENT This second appeal is focussed by the defendant, animadverting upon the judgment and decree dated 26.04.2010 passed by the learned Subordinate Judge, Perambalur in A.S.No.20 of 2009 confirming the judgment and decree dated 25.03.2009 passed by the learned District Munsif, Perambalur in O.S.No.229 of 2004. 2. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 3. Heard both sides. 4. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: a] The narration of brief facts as found set out in the plaint would be to the effect that the defendant borrowed totally a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.75,000/-; whereupon a demand suit promissory note was executed; since there was default in repaying the debt, the suit was filed. Written statement was filed resisting the claim. Whereupon, the trial court framed the issues and ultimately decreed the suit. b] Being aggrieved by and dissatisfied with the judgment and decree of the trial court, appeal was filed on various grounds including the one relating to limitation. The appellate court dismissed the appeal confirming the judgment and decree of the lower court. c] Challenging and impugning the same, this second appeal has been filed on various grounds, inter alia thus: (i) The appellate court even though referred to various judgments of the High Courts as well as the Hon'ble Apex Court failed to take into consideration the relevant fact that the defendant had the right to raise as an appellant before the first appellate court for the first time the limitation point relating to presentation of the plaint. (ii) The lower appellate court was wrong in simply observing that since no revision was filed as against the order passed by the trial court under Section 149 of the Code of Civil Procedure, no such plea relating to limitation could be raised before the Appellate court. 5. On hearing both sides I formulated the following substantial question of law: "Whether the first appellate court was justified in holding that since no revision was filed as against the order passed by the trial court under Section 149 of the Code of Civil Procedure, the appellant could not raise it for the first time in the appeal?" 6. The learned counsel for the defendant would reiterate the aforesaid grounds found set out in the second appeal and also place reliance on the judgment of the Division Bench of this court reported in 2003(2) MLJ 305 (K.Natarajan vs. P.K.Rajasekaran). 7. Whereas in an attempt to torpedo and pulverise the argument as put forth on the side of the defendant/appellant, the learned counsel for the plaintiffs/respondents would invite the attention of this court to the Hon'ble Apex Court's judgment reported in 2009 (4) CTC 187 (SC) (P.K.Palanisamy vs. N.Arumugham and another) as well as the following judgments: https://hcservices.ecourts.gov.in/hcservices/ 1. AIR 1968 Delhi 183 (Custodian of Evacuee Property, New Delhi vs. Rameshwar Dayal and others). An excerpt from it would run thus: "8. On the facts and circumstances of the present case, when the deficient amount of court-fee to be affixed on the copy of the order appealed from what was actually attached with the application under Section 149, Code of Civil Procedure, in my opinion, it would have been a more appropriate and more satisfactory exercise of judicial discretion to allow the deficiency to be made good so that the controversy was heard on the merits rather than to throw out the appeal on this ground..........." 2. MLJ Reports Vol.XIX Part XIV page 340 Full Bench (Gavaranga Sahu vs. Botokrishna Patro and others) in support of his argument. An excerpt from it would run thus: "To hold with Shephaard, J., that an insufficiently stamped plaint being ab initio void cannot be validated seems to me, with great deference, to be running counter to S.28 of the Court Fees Act and to S.54 (b) of the Code of Civil Procedure. In neither case, as I read these sections, can it be held that the plaint, when the deficiency is supplied, is a new plaint. In my opinion sufficient extent is given to the word 'validity' in S.28 if it is confined to the purposes of the Act in which it is found, and I therefore agree with Sir Subrahmanya Aiyar, J., and the observation of Sir George Knox, A.C.J., to which I have referred. I do not overlook the danger adverted to in Fainti Prasad v. Bachu Singh, where the observations of the learned Judges at pp.73 and 74 of the report conjure up a picture of a District Munsiff's Head Clerk dispensing to belated and impecunious plaintiffs what would amount to extension of limitation periods up to one, ten, or twenty years; but I cannot but think that had the framers of the Code of Civil Procedure had this danger in mind they would have provided against it expressly in the Code, and I cannot therefore accept the existence of the danger as evidence of any value in favour of the view of the law taken in Venkatramayya v. Krishnayya. I do not say that the danger is unreal, but it can be minimized if not extinguished in various ways, one of which would be by fixing a maximum period of time under S.54(b) of the Code https://hcservices.ecourts.gov.in/hcservices/ of Civil Procedure or rather hereafter under Order VII, rule II, of the new Code of Civil Procedure; and after all, if the officer of the Court is disposed to misconduct, it is not difficult to admit an insufficiently stamped plaint by an alleged mistake or inadvertence and file it; in which case the plaintiff also obtains in effect an extension of the limitation period within which to present a fully stamped plaint. As I am unable to distinguish Venkatramayya v. Krishnayya on the ground suggested by Banerji J., in Surendra Kumar Basu V.Kunja Behary Singh, and as opinions in this Court are as I have shown conflicting, I will ask the Chief Justice to refer to a Full Bench the question:- "When a plaint is presented on a paper insufficiently stamped, "within the prescribed period of limitation, and time is given by "the Court under S.54(b) of the Code of Civil Procedure to "make good the deficiency, is the suit barred by limitation, if the "deficiency is supplied within the time fixed by the Court, but 'after the limitation period has expired?" ............................ Their Lordships expressed the following Opinion:- We agree with the view taken in the order of reference and with the reasons upon which it is based. Section 149 of the Code of Civil Procedure, 1908 is in accordance with this view." No doubt, the aforesaid current decision of the Hon'ble Apex Court (2009(4) CTC 187 (SC) would have binding effect as it touched upon almost all the technical aspects of the matter. 3. Judgment of this court dated 05.10.2010 passed in CRP(NPD) No.2811 of 2009 (P.Kumar vs. Sanjay Agarwal and others). The relevant portion of the said judgment would run thus: "29.Be that as it may, the terms "at any stage" in Section 149 of Civil Procedure Code adumbrates that the deficiencies can be made good even after the expiry of the limitation period in regard to the filing of the suit or Appeal and further, the discretion can be exercised even in the case of a plaint without any Court fee. In this connection, it is not out of place for this Court to point out that the discretion showered on a Court of law as per Section 149 of C.P.C. is over and above the application https://hcservices.ecourts.gov.in/hcservices/ under Order 7, Rule 11 of C.P.C. To put it precisely Order 7, Rule 11 of C.P.C. is not an enabling provision, but only a disabling one and the proper Section in and by which time may be granted for payment of Court fee is only Section 149. 30.That apart, an application to receive the Court fee is not a mandatory one and the same is only optional, as opined by this Court and even in the absence of any application, the trial court is quite competent and well within its bound to accept or deposit court fee in a prudent, sensible and equitable manner, but in the instant case on hand, the observation of the trial court that 'the Revision Petitioner/Plaintiff neither paid the Court fee within the period of limitation filed the Application under Section 149 of C.P.C. to extend the time for payment of deficit Court fee and consequently, rejecting the plaint by allowing I.A.74 of 2008, etc.', are not correct in the eye of law. 31.This Court succinctly points out that when the Revision Petitioner/Plaintiff as on 24.08.2007 has represented the Plaint by complying with certain defects and also paid the deficit court fee, then such act cannot be found fault with by the Respondents raising a plea there must be separate application under Section 149 of C.P.C. to extend the time for payment of deficit Court fee is not a correct and tenable one and since the order of the trial court dated 30.04.2009 is not in conformity of the well settled legal position that an application to receive the deficit Court fee is not a mandatory one since the same being an optional one, the non filing of an application under Section 149 of Civil Procedure Code is not a fatal one and hence, this Court necessarily interferes with the said order and accordingly, sets aside the same by allowing the Civil Revision Petition, by exercising its supervisory and parental powers under Article 227 of the Constitution of India which has to be sparingly used and since it is a fit case for using the said power, this Court is exercising the same in furtherance of substantial cause of justice." Placing reliance on those precedents, he would develop his argument that this is a pathetic case in which the lender of the money viz.,the original plaintiff was made to run from pillar to post to get her money due under the suit promissory note; even though an exparte decree was passed and subsequently E.P.was filed, yet https://hcservices.ecourts.gov.in/hcservices/ thereafter the defendant filed an application to get the exparte decree set aside and consequently, the trial court also set aside the exparte decree and judgment and gave liberty to the defendant to file written statement; surprisingly, in the written statement, the plea relating to limitation or in correct presentation of the plaint without proper court fee as per law was not raised and even no separate application under Section 151 of CPC was filed challenging the correctness of the presentation of the plaint and the subsequent payment of the court fee concerned beyond the limitation period. 8. As such, according to the plaintiffs counsel, similar set of facts herein were involved in the case dealt with by the Hon'ble Apex Court cited supra. Accordingly, he prays for dismissing this second appeal. 9. The learned counsel for the plaintiffs would also submit that the appellate court threadbare discussed the pros and cons of the matter and decided the lis by observing to the effect that the defendant was guilty of laches, warranting no interference of this court. 10. An excerpt from the decision of the Division Bench of this court reported in 2003(2) MLJ 305 is extracted here under for ready reference: "21.We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:- (1)Sec.149 of Code of Civil Procedure is a proviso to Sec.4 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. (2)The word 'document' employed in Sec.149 of Code of Civil Procedure would include plaint also. (3)Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third day (excluding the date of presentation so also the intervening holidays). (4)If the suit is presented on the last date of limitation affixing less Court-fee, then the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court-fee. (5)In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court- fee, shall order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite Court-fee and the Court is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as https://hcservices.ecourts.gov.in/hcservices/ calculation mistake or the alike. (6)The discretion referred to in Sec.149 of Code of Civil Procedure is a judicial discretion and the same has to be exercised in accordance with the well established principles of law. (7)But however, in cases where the time granted to pay the deficit Court-fee falls within the period of limitation, the defendant need not be heard. (7A)In case where the plaint is presented well within the period of limitation with deficit Court-fee and the Court returns the plaint to rectify the defect giving sometime ( 2 or 3 weeks), which also falls within the period of limitation, but the plaint is re-presented paying deficit Court-fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial Court-fee(not almost entirety) at the first instance, before condoning the delay in paying the deficit Court-fee. (8)In cases where part of the time granted to pay the deficit Court-fee falls outside the period of limitation and the deficit Court-fee is paid within the time of limitation ( i.e. The plaint is re-presented with requisite Court-fee), the Court need not wait for the objections of the defendant and the plaint can be straight away numbered. (9)The Court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court Fee Act or where he could not pay the required Court-fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial Court-fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in. But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying Court-fee, awaiting the result of some other litigation, expecting compromise, etc.) (10)If the Court had exercised its discretion without issuing notice, then it is open to the defendant to file application under Sec.151 of Code of Civil Procedure for proper relief. It will be open to the defendant to file a revision under Art.227 of Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law(as laid https://hcservices.ecourts.gov.in/hcservices/ down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law." It is also just and necessary to extract here under the relevant portion of the judgment of the Hon'ble Apex court reported in 2009 (4) CTC 187 (SC) cited supra. "9. The respondents in their written statement did not raise any issue with regard to the correctness or otherwise of the orders dated 7th October 1998, 8th November 1998, 20th November 1998 and 21st January 1999. Rightly or wrongly, the plaint was accepted. The deficit Court fee has been paid. The Court was satisfied with regard to the bona fide of the plaintiff. Hearing of the suit proceeded; not only issues were framed but the witnesses on behalf of the parties were also examined by both the parties. It is difficult to believe that from 10th January 2001 to 4th January 2008, the respondents or their counsel did not have any occasion to inspect the records. Any counsel worth itself would not only do so but even without doing so would address himself a question as to why a suit filed on 4th October 1998 was entertained in the year 2000. The Suit was at one point of time decreed ex parte. The same was set aside on certain conditions. Evidently, the conditions laid down had been satisfied only upon obtaining an extension of time. In the aforementioned backdrop of events, we may not have to go into the correctness or otherwise of the decision rendered by the Madras High Court in K.Natarajan v.P.K.Rajasekaran, 2003 (2) MLJ 305, which has been followed in Ramiah and another v. R.Palaniappan and others, 2007(5) MLJ 559; S.V.Arjunaraja v. P.Vasantha, 2005 (5) CTC 401; and V.N.Subramaniyam v. A.Nawab John and others, 2007 (1) MLJ 669. 10. We have, however, serious reservations as to whether the Civil Court could hear a defendant before registering a plaint. The Code does not envisage such a situation. When a suit is filed, the Civil Court is bound by the procedures laid down in the Code. The defendant upon appearing, however, in certain situations, may question the orders passed by the civil court at a later stage. 11. We would assume that the respondents were entitled to a notice before registration of plaint under https://hcservices.ecourts.gov.in/hcservices/ Section 149 of the Code. Indisputably, the courts were required to assign reasons in support of their orders. Had the validity and/or legality of those orders been challenged before an appropriate court, it would have been possible by the plaintiffs to contend that the defendants had waived their right by their subsequent conduct and they would be deemed to have accepted the same. Even on later occasion, the courts would assign reasons upon satisfying itself once over again. If an order has been passed without hearing the one side, he may be heard but by reason thereof, the plaint would not be rejected outrightly. Before doing so, the applications of the plaintiff under Section 149 of the Code have to be rejected. In Buta Singh (Dead) by L.Rs. v. Union of India, 1995 (5) SCC 284, it was held: "The aid of Section 149 could be taken only when the party was not able to pay Court Fee in circumstances beyond his control or under unavoidable circumstances and the Court would be justified in an appropriate case to exercise the discretionary power under Section 149, after giving due notice to the affected party. But that was not the situation in this case. Under the relevant provisions of the Court Fee Act applicable to Appeals filed in the High Court of the Punjab & Haryana, the claimants are required to value the appeals in the MOAs and need to pay the required Court Fee. Thereafter, the Appeal would be admitted and the notice would go to the respondents. The respondents would be put on notice of the amount, the appellant would be claiming so as to properly canvass the correctness of the claim or entitlement. The claim cannot be kept in uncertainty. If in an Appeal under Section 54 of the Land Acquisition Act the amount is initially kept low and then depending upon the mood of the Appellate Court, payment of Deficit Court fee is sought to be made, it would create unhealthy practice and would become a game of chess and a matter of chance. That practice would not be conducive and proper for orderly conduct of litigation." https://hcservices.ecourts.gov.in/hcservices/ It is significant and of paramount importance to observe that the decision of the Division Bench of this court is found referred to in the decision of the Hon'ble Apex Court cited supra. 11. The Full Bench decision of this court cited supra is on the broad proposition that the trial court has got jurisdiction to condone the delay in paying court fee even beyond the limitation period. However, subsequently the cited Division Bench judgment of this court had laid down procedures for condoning such delay and on that the Hon'ble Apex Court rendered its decision. 12. At this juncture, I hark back to the maxim "Judicia posterioriora sunt in lege fortiora (The later decisions are stronger in law). Accordingly, the latest Apex Court's judgment should be taken as the one governing the field. 13. It is a trite proposition of law that even obiter dicta of the Hon'ble Apex Court would constitute a binding precedent as per Article 141 of the Constitution of India. 14. The Hon'ble Apex Court doubted the correctness of the cited decision of the Division Bench in expecting the trial court to order notice to the defendant even before registering the plaint in connection, with the application filed under Section 149 of the Code of Civil Procedure for getting extended the time to pay the court fee and that itself is indicative of the fact the Hon'ble Apex Court did not approve such issuance of notice before registering the plaint. 15. It is therefore clear that the Hon'ble Apex Court looked askance at the procedure of issuing notice by the trial court to the defendant even before registering the plaint. However the cited Division Bench judgment of this court among other procedures would contemplate such issuance of notice. Hence, I am of the view that once the Hon'ble Apex Court shunned such procedure, it is not open for any court to stick on to the procedure of issuing notice to the defendant even before the registration of the plaint. 16. However, I would hasten to add that para No.21 of the judgment of the Division Bench of this court cited supra, is worthy of being recollected here, that even at the appellate stage, the defendant can raise the point that the plaint was not presented with appropriate court fee in time. 17. The learned counsel for the plaintiffs would submit that if an application was filed under Section 151 of the Code of Civil Procedure or if any plea was taken in the written statement then the https://hcservices.ecourts.gov.in/hcservices/ trial court would have had the opportunity of citing more reasons than the reasons, which the trial court had stated for allowing the application filed under Section 149 of the Code of Civil Procedure and in fact in para Nos.9 to 11 of the Hon'ble Apex Court's Judgment, such a procedure is contemplated; now, the defendant cannot holus bolus raise the point of limitation before the High Court in Second appeal and thereby deprive the opportunity of the plaintiffs to put forth additional reasons for having paid the court fee beyond the limitation period. 18. The learned counsel for the plaintiffs also would submit that payment of court fee is an issue between the litigant plaintiff and the court, so to say, between the litigant and the State and once the discretionary power has been exercised in one way or the other by the trial court, normally the first appellate court or the High Court would not interfere in such discretion exercised by the lower court. Accordingly, he would pray for dismissal of the second appeal itself. 19. However, the learned counsel for the defendant would reiterate his stand by pointing out that the appellate court even though narrated in extenso the various facts, it misdirected itself by applying the wrong proposition of law to the effect that without filing revision as against the order passed by the trial court under Section 149 of