A. Nawab John & Ors vs V. N. Subramaniyam

4. It is the case of the Plaintiffs that the abovementioned defendant was indebted to one Mr. Radhakrishnan and also to the Tamil Nadu Industrial Investment Corporation Limited (for short ‘TNIIC”). It is alleged in the plaint that Sengoda Gounder wanted to clear the debts to the abovementioned two persons before the property is actually conveyed to the plaintiffs. For the said purpose, Sengoda Gounder collected an amount of Rs.12,15,125/- in instalments from the plaintiffs. In spite of receipt of such payment, Sengoda Gounder did not execute the sale deed, on some pretext or other. Therefore, the Suit.

5. During the pendency of the Suit, the sole respondent herein, filed an Application praying that he be impleaded as a party defendant to the said Suit, on the ground that he purchased the suit scheduled property on 08-03-1999 for a consideration of Rs.3,93,560/-. It appears from the record that the said I.A. was allowed and the sole respondent herein was impleaded as the second defendant in the abovementioned Suit. Consequent upon the said impleadment, the plaint came to be amended by inserting para 10A, the details of which are not necessary for the present purpose.

6. Initially, the Suit was valued at Rs.13,31,663-00 ps. on which the plaintiff calculated that a court-fee of Rs.99,875-75 ps. is payable, under Section 42 of The Tamil Nadu Court Fees and Suits Valuation Act, 1955” (hereinafter referred to as the ‘Tamil Nadu Act’ for the sake of convenience). The plaint was presented on 20-08-1998 with deficit court- fee. Only an amount of Rs.2,000/- was paid. The plaint was returned by the Court on 24-08-1998 with various objections including the deficiency in the court- fee. The plaintiffs represented (1st representation) the plaint after a long delay on 03-05-2002 along with a court-fee of Rs.96,000/-, with an Application to condone the delay in representation. On 03-06-2002, the plaint was again returned, inter alia, on the ground that there still was a deficit of the court-fee. Eventually, the plaint was represented on 22-01- 2004 (2nd representation) remitting a further amount of Rs.2,875/- court-fee along with Applications to condone the delay in representation, etc. On the same day, the plaint was once again returned with certain objections. On 09-04-2004, the plaint was once again represented (3rd representation) with an application to condone the delay of 70 days in representation. On 15-04-2004, the Suit was numbered as O.S.No.100 of 2004 by the Court. On 05-10-2004, Sengoda Gounder was set ex parte. On the same day, however, the sole respondent herein filed implead-petition in I.A.No.1532 of 2004, which was allowed by an order dated 09-03-2005.

9. I.A.No.1 of 2006 filed by the plaintiffs was allowed by an order dated 16-02-2006. Aggrieved by the same, the sole respondent carried the matter in Revision to the High Court in C.R.P.(PD) No.769 of 2006, which was dismissed by an order dated 25-04-2006. I.A.No.3 of 2006 filed by the 2nd defendant/ respondent herein, was dismissed by an order dated 31- 03-2006, and a Revision in C.R.P.(PD)No.797 of 2006, filed challenging the same.

11. Initially, the Suit was presented before the Sub-Court, Bhavani, but finally represented (3rd representation) to the District Court, Erode, due to the change brought about in the pecuniary jurisdiction of the Civil Courts by Tamil Nadu Act No.1 of 2004, which came into force w.e.f., 29-12-2003 and numbered as O.S.No.100 of 2004. Subsequently, the same was transferred to Additional District Court (FTC-IV), Bhavani and renumbered as O.S.No.4 of 2005. The initial presentation and the 1st two representations, mentioned earlier, of the Suit were to the Sub Court, Bhavani, and the final representation was to the District Court, Erode. The delay in representation, on the 1st two occasions, was condoned by the Sub Court, Bhavani.

(c ) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue.” It can be seen, the sub-section (c) provides for the dismissal of only the appeal in case of the failure to make good the deficit of Court fee if the same pertains to that portion of the decree by which a portion of the plaintiff’s claim stood dismissed by the trial court. However in the case of the default in making good portion of the court fee pertaining decree in favour of the plaintiff, the Section only mandates the recovery of the amount by resort to the Revenue Recovery Act but does not command the Suit to be dismissed. Obviously the legislature did not intend to give any advantage to the defendants on account of the payment of the inadequate Court fee by the plaintiffs.

“4. Levy of fee in Courts and public offices No document which is chargeable with fee under this Act shall --

39. We do not see any reason to take a different view than that are taken by the High Court. The discretion under Section 149 was not exercised by the trial Court in accordance with the principles of law. The appeal is, therefore, required to be dismissed on that count alone. In view of such a conclusion, we do not think it necessary to examine the other questions raised by the 2nd defendant.

40. The appeal is dismissed.

July 3, 2012.

3 [2] 12 Decision as to proper fee in other Courts (2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.