REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                  OF 2009 [Arising out of SLP (Civil) No. 2308 of 2009]

P.K. PALANISAMY …APPELLANT   

Versus

N. ARUMUGHAM & ANR.        …RESPONDENTS

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. This  appeal  is  directed  against  a  judgment  and  order  dated  28th  

November,  2008 passed  by  a  learned  single  judge of  the  High Court  of  

Judicature  at  Madras  whereby  and  whereunder  a  Civil  Revision  Petition  

filed under Article 227 of the Constitution of India against the Order dated  

05th February, 2008 passed by the Additional District Munsif cum Fast Track

Court No.II, Salem in I.A. No. 22 of 2008 in O.S. No. 114 of 2004 has been  

allowed.  

3. The brief facts necessary to be noted for the purpose of disposal of  

this case are as under:

The appellant allegedly advanced a loan for a sum of Rs.5,90,000/- to  

the respondent No.1 on 29th January, 1995.  As the respondent No.1 failed to  

refund  the  amount  despite  repeated  demands  from  the  appellant,  a  

Promissory Note was got executed by her on or about 2nd October, 1995.  

The respondent No. 1 issued two cheques for a sum of Rs.1,00,000/-  

each  on   8th June,  1996  towards  partial  discharge  of  his  obligation.  

However, the cheques when presented to the Banks were returned with the  

remarks “No fund”.

The appellant caused a legal notice to be served on the respondents on  

29th August, 1998, which was received by them on 2nd September, 1998.   

The  appellant  instituted  a  suit  for  recovery  of  money  against  the  

respondents  on or  about 4th October,  1998 before the Subordinate  Judge,  

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Salem.  The plaint was presented on 5th October, 1998 as the 2nd, 3rd and 4th  

October, 1998 were holidays for the courts.  The plaint was accompanied by  

a court fee of Re.1/- only. He also filed an application purported to be in  

terms of Section 148 read with Section 151 of the Code of Civil Procedure  

(for short, “the Code”) seeking six weeks time for payment of the deficit  

court fees.  The trial court granted six weeks’ time for payment of the deficit  

court fees by an order dated 7.10.1998.   

On or about 8th November, 2008, another petition was filed by the  

appellant seeking eight weeks’ time for payment of deficit court fees on the  

premise that the stamp fee papers were not yet available in the Sub-Treasury.  

The trial court granted eight weeks’ time by an order dated 20th November,  

1998.  Another eight weeks’ time was granted by the trial court by an order  

dated 21st January, 1999.   He, however, deposited the deficit court fee stamp  

on  17th February,  1999,  which  was  accepted  by  the  learned  Subordinate  

Judge.  

Indisputably,  an application marked as I.A. No. 838 of 2000 under  

Section 151 of the Code to condone the delay of 272 days in representing the  

plaint filed by the appellant was allowed by the trial court by an order dated  

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2nd November, 2000.  The plaint was represented with the application for  

attachment before judgment and an application for condonation of delay in  

re-filing.   

The respondents entered appearance upon receipt of summons on 10th  

January 2001.  Indisputably, on the same day, an order of attachment before  

judgment was also passed with regard to the scheduled property.   

On 17th February 2003, written statement was filed by the respondent.  

In the said written statement,  no objection was raised with regard to the  

delay in payment of court fee.  No issue in that behalf was framed.

Indisputably,  thereafter,  the respondents remained absent and an ex  

parte decree came to be passed in favour of the appellant on 29th September,  

2004 by the trial court.   

An application marked as I.A. No. 1138 of 2005 filed on behalf of the  

respondents after  a gap of 289 days to set  aside the ex parte decree was  

allowed by the trial court with a condition to pay Rs.1000/- as costs.  

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Feeling aggrieved by and dissatisfied with the said order, the appellant  

preferred Revision Petition under Article 227 of the Constitution of India  

before the High Court on or about 8th June, 2007.  The learned single judge  

of the High Court after observing that the modus operandi of the respondents  

is to protract the suit proceedings, ruled a conditional order, viz., the suit  

would be revived only if the respondents deposit  Rs. 3,00,000/- by order  

dated  8th June,  2007.  That  order  became  final.   Even  at  that  stage  no  

objection as regards non-deposit of court fees within reasonable time was  

raised by the respondents.   

Indisputably,  the  respondents  deposited  the  money  after  getting an  

extension as well and the suit was revived.  The appellant was examined and  

cross-examined so also his witness.   However, It  may be noticed that no  

suggestion to impeach the credibility as to non-availability of court fee or  

limitation was put to him.   

Indisputably,  an  application  marked  as  I.A.  No.  22  of  2008 under  

Order VII Rule 11(c) was moved by the respondents on or about 4th January  

2008 seeking for rejection of the plaint urging for the first time that the suit  

presented on 5th October 1998 was barred by limitation as the extension of  

time granted by the trial court under Section 149 read with Section 151 of  

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the Code and condonation of delay in re-filing was passed without issuing  

notice  to  them.   The  appellant  contested  the  said  application  by  filing  a  

counter affidavit thereto.

The trial court by reason of order dated 5th February, 2008 dismissed  

the said application filed by the respondents.   

Aggrieved  thereby,  the  respondents  preferred  a  Revision  Petition  

marked as Civil Revision Petition No. 815 of 2008 under Article 227 of the  

Constitution of  India  before the High Court,  which has been allowed by  

reason of the impugned judgment.   

4. Appellant is, thus, before us.

5. Mr. E. Padmanabhan, learned Senior Counsel in support of the appeal  

urged:

(i) The  High  Court  committed  a  serious  error  in  passing  the  

impugned  judgment  insofar  as  it  failed  to  take  into  

consideration  that  the  legality  of  the  orders  dated 7.10.1998,  

8.11.1998,  20.11.1998  and  21.1.1999  having  not  been  

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questioned,  the  same in  effect  and substance  could not  have  

been set aside by reason of the impugned judgment.

(ii) The appellant  having  acted  bona  fide  inasmuch  as  court  fee  

stamp papers  being not  available  in the treasury,  the learned  

trial  court  must  be  held  to  have  exercised  its  jurisdiction  

judiciously in terms of Section 149 of the Code.

(iii) Although  the  application  for  grant  of  time  was  filed  under  

Section 148 of the Code of Civil Procedure read with Section  

151 thereof,  the same ought to have been held to have been  

filed under Section 149 of the Code.  

(iv) The  respondents  having  not  raised  any  issue  with  regard  to  

delayed filing of the court fee stamp in their written statement  

or  thereafter,  the  application  filed  by  them  purported  to  be  

under Order VII Rule 11(c) of the Code at the stage when the  

evidence had been adduced by the parties  ought not  to have  

been entertained.  

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6. Mr. Krishnan Venugopal, learned Senior Counsel appearing on behalf  

of the respondents, on the other hand, would urge:

(i) Keeping  in  view the  long line  of  decisions  of  Madras  High  

Court whereupon strong reliance has been placed by the High  

Court, the learned trial court was legally bound to serve a notice  

upon  the  respondents  before  passing  of  the  orders  dated  

7.10.1998, 8.11.1998, 20.11.1998 and 21.1.1999.

(ii) The jurisdiction of the trial court contained in Section 149 of  

the Code being limited, it was obligatory on its part to assign  

sufficient and cogent reasons therefor.  

(iii) Non-grant of opportunity of hearing to the respondents by the  

trial court and non-recording of reasons rendered the orders in  

question  as  nullities  and  in  that  view  of  the  matter,  an  

application under Order VII Rule 11(c) for rejection of plaint  

must be held to have been maintainable.   

(iv) The  trial  court  had  the  jurisdiction  to  entertain  the  said  

application at any stage of the suit  

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(v) Order VII Rule 11(c) being not dependent upon an order passed  

by the trial court under Section 149 of the Code, the latter shall  

prevail over the earlier.   

(vi) The instant case being not the one where additional court fee  

was required to be filed, the High Court must be correctly and  

rightly held to have exercised its jurisdiction.  

7. When a plaint is presented ordinarily it should be accompanied with  

the requisite court fees payable thereupon.  Section 4 of the Court Fees’ Act,  

1870 mandates the same in the following terms:

“4. Fees  on  documents  filed,  etc.,  in  High  Courts in their extraordinary jurisdiction:- No  document of any of the kinds specified in the First  or  Second  Schedule  to  this  Act  annexed,  as  chargeable  with  fees,  shall  be filed,  exhibited  or  recorded in, or shall be received or furnished by,  any of the said High Courts in any case coming  before  such  Court  in  the  exercise  of  its  extraordinary original  civil  jurisdiction;  or  in the  exercise  of  its  extraordinary  original  criminal  jurisdiction;

in  their  appellate  jurisdiction;  --  or  in  the  exercise of its jurisdiction as regards appeals from  the judgments (other than judgments passed in the  exercise of the ordinary original civil jurisdiction  

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of the Court)  of  one or  more Judges of the said  Court, or of a division Court;

or  in  the  exercise  of  its  jurisdiction  as  regards  appeals  from  the  Courts  subject  to  its  superintendence;  

as  Courts  of  reference and revision.-  or  in  the  exercise  of  its  jurisdiction  as  a  Court  of  reference or revision;

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.”

It, however, does not mean that whenever a plaint is presented with  

deficit court fee, the same has to be rejected outrightly.  Section 149 of the  

Code provides for the court’s power to extend the period.  It reads as under:

“149. Power  to  make  up  deficiency  of  Court- fees.-  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.”

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Section 149 raises a legal fiction in terms whereof as and when such  

deficit court fee is paid, the same would be deemed to have been paid in the  

first instance.   

8. Appellant  while  presenting  the  plaint  inter  alia  contended  that  

sufficient  court  fee  stamps  were  not  available  in  the  sub-treasury.   The  

Presiding Officers of the local Civil Courts in a given situation would be  

aware thereof.  It may, therefore, consider the prayers made in that behalf by  

a suitor liberally.  If court fees are not available in a sub-treasury for one  

reason or the other, the court having regard to the maxim ‘lex non cogit ad  

impossibilia” would not reject such a prayer.   

Payment of court fees furthermore is a matter between the State and  

the  suitor.   Indisputably,  in  the  event  a  plaint  is  rejected,  the  defendant  

would be benefited thereby, but if an objection is to be raised in that behalf  

or an application is to be entertained by the court at the behest of a defendant  

for  rejection  of  the plaint  in terms of  Order  VII  rule  11(c)  of  the Code,  

several aspects of the matter are required to be considered.  

Once an application under Section 149 is  allowed, Order VII Rule  

11(c) of Code will have no application.

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It is for that additional reason, the orders extending the time to deposit  

deficit court fee should have been challenged.  

Filing of an application for rejection of plaint in a case of this nature  

as also having regard to the events which have taken place subsequent to  

registration of the suit appears to us to be mala fide.   

If the learned trial judge did not entertain the said plea, the High Court  

should not have interfered therewith.   

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  

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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 vs. P.K. Rajasekaran [(2003) 2 M.L.J. 305], which has  

been followed in Ramiah & Anr. vs. R. Palaniappan & Ors. [(2007) 5 MLJ  

559],  S.V.  Arjunaraja  vs.P.  Vasantha [2005  (5)  CTC  401]  and  V.N.  

Subramaniyam vs. A. Nawab John & Ors. [(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 Section 149 of the Code.  Indisputably, the courts  

were required to assign reasons in support of their orders.  Had the validity  

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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 LRs. 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.  

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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.”

12. It is now a well settled principle of law that an order passed by a court  

having jurisdiction shall remain valid unless it is set aside.  

In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth,  

Naduvil (dead) & Ors. [AIR 1996 SC 906], it is stated:

“7.  In  Halsbury's  Laws  of  England,  4th  edition,  (Reissue) Volume 1(1) in paragraph 26, page 31, it  is stated, thus:

“If an act or decision, or an order or other  instrument is invalid, it should, in principle  be null and void for all purposes: and it has  been said that there are no degrees of nullity.  Even  though  such  an  act  is  wrong  and  lacking in jurisdiction,  however,  it  subsists  and remains fully effective unless and until  it  is  set  aside  by  a  Court  of  competent  jurisdiction. Until its validity is challenged,  its legality is preserved.”

In  the  Judicial  Review of  Administrative  Action  De Smith, Wolf and Jowell, 1995 edition, at pages  259-260 the law is stated, thus:

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The  erosion  of  the  distinction  between  jurisdictional  errors  and  non-jurisdictional  errors has, as we have seen, correspondingly  eroded  the  distinction  between  void  and  voidable decisions. The courts have become  increasingly  impatient  with  the  distinction,  to the extent that the situation today can be  summarised as follows:

(1) All official decisions are presumed to be  valid until set aside of otherwise held to be  invalid by a court of competent jurisdiction.

Similarly,  Wade  and  Forsyth  in  Administrative  Law, Seventh edition -1994, have stated the law  thus at pages 341-342:

...every  unlawful  administrative  act,  however invalid, is merely voidable. But this  is  no  more  than  the  truism  that  in  most  situations  the  only  way  to  resist  unlawful  action is by recourse to the law. In a well- known passage Lord Radcliffe said:

An order, even if not made in good faith, is  still an act capable of legal consequences. It  bears  no  brand  of  invalidity  upon  its  forehead. Unless the necessary proceedings  are  taken  at  law to  establish  the  cause  of  invalidity and to get it quashed or otherwise  upset,  it  will  remain  as  effective  for  its  ostensible  purpose  as  the  most  impeccable  of orders.

This  must  be  equally  true  even where  the  brand  of  invalidity  is  plainly  visible  :  for  there  also  the  order  can  effectively  be  resisted  in  law  only  by  obtaining  the  decision  of  the  court.  The  necessity  of  recourse to the court  has been pointed put  repeatedly in the House of Lords and Privy  

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Council  without  distinction between patent  and latent defects.”

{See also Baljinder Singh vs. Rattan Singh [2008 (11) SCALE 198]}

13. A  contention  has  been  raised  that  the  applications  filed  by  the  

appellant herein having regard to the decisions of the Madras High Court  

could not have been entertained which were filed under Section 148 of the  

Code.   Section  148 of  the  Code is  a  general  provision  and Section  149  

thereof is special.  The first application should have been filed in terms of  

Section 149 of the code. Once the court granted time for payment of deficit  

court fee within the period specified therefor, it would have been possible to  

extend the same by the court in exercise of its power under Section 148 of  

the Code.  Only because a wrong provision was mentioned by the appellant,  

the same, in our opinion, by itself would not be a ground to hold that the  

application was not maintainable or that the order passed thereon would be a  

nullity.

It  is  a  well  settled  principle  of  law  that  mentioning  of  a  wrong  

provision or non-mentioning of a provision does not invalidate an order if  

the court and/or statutory authority had the requisite jurisdiction therefor.   

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In Ram Sunder Ram v. Union of India & Ors. [2007 (9) SCALE 197],  

it was held:

“…..It  appears  that  the  competent  authority  has  wrongly  quoted  Section  20  in  the  order  of  discharge whereas, in fact, the order of discharge  has to be read having been passed under Section  22 of  the Army Act.  It  is  well  settled that  if  an  authority  has  a  power  under  the  law  merely  because while exercising that power the source of  power is not specifically referred to or a reference  is made to a wrong provision of law, that by itself  does not vitiate the exercise of power so long as  the power does exist and can be traced to a source  available  in  law  [see  N.  Mani v.  Sangeetha  Theatre  and  Ors. (2004)  12  SCC  278].  Thus,  quoting of wrong provision of  Section 20 in the  order  of  discharge  of  the  appellant  by  the  competent  authority  does  not  take  away  the  jurisdiction of the authority under Section 22 of the  Army Act. Therefore, the order of discharge of the  appellant from the army service cannot be vitiated  on this sole ground as contended by the Learned  Counsel for the appellant.”

In N. Mani v. Sangeetha Theatres & Ors.  [(2004) 12 SCC 278], it is  

stated:

“9. It  is  well  settled that  if  an authority  has a  power  under  the  law  merely  because  while  exercising that power the source of power is not  specifically referred to or a reference is made to a  wrong  provision  of  law,  that  by  itself  does  not  vitiate the exercise of power so long as the power  does exist and can be traced to a source available  in law.”

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14. An application for rejection of the plaint was filed only in the year  

2008.   Evidently,  that  was not  the  stage  for  entertaining  the  application.  

Order VII rule 11(c) of the Code could not have been invoked at that point  

of time.  

15. Mr. Venugopal, however, would rely upon a decision of this Court in  

Saleem Bhai & Ors., v. State of Maharashtra & Ors. [(2003) 1 SCC 557].

We would assume that the said decision lays down the law correctly.  

But we may notice that therein the court was concerned with an application  

filed under Order VII Rule 11(a) and (d) of the Code to hold that the therefor  

exercising  the  jurisdiction  thereunder  the  averments  in  the  plaint  are  

germane  and  the  pleas  taken  by  the  defendants  in  the  written  statement  

would be wholly irrelevant  at  that stage.   Therein,  a direction to file the  

written statement was given without deciding the application under Order  

VII rule 11 of the Code. It was held to be a procedural irregularity touching  

the exercise of jurisdiction by the trial court.  It was, therefore, not a case  

even on facts where the jurisdiction was exercised after the evidence had  

been adduced.  The observation made must be held to be confined to the fact  

of that case only and it does not lay down a general proposition of law that  

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even after  the evidence are  led,  an application  for rejection of  the plaint  

under  Order  VII  Rule  11(c)  is  maintainable  as  by  that  time the suit  has  

already been registered by the court upon exercising its jurisdiction under  

Section 149 of the Code.   

We may, however, notice that in Ram Prakash Gupta v. Rajiv Kumar  

Gupta & Ors.[(2007) 10 SCC 59], it was held :-  

“22. It is also relevant to mention that after filing  of  the  written  statement,  framing  of  the  issues  including  on  limitation,  evidence  was  led,  the  plaintiff  was  cross-examined,  thereafter  before  conclusion of the trial, the application under Order  7 Rule 11 was filed for rejection of the plaint. It is  also pertinent to mention that there was not even a  suggestion  to  the  appellant-plaintiff  to  the  effect  that the suit filed by him is barred by limitation. 23. On going through the entire plaint averments,  we  are  of  the  view  that  the  trial  court  has  committed  an  error  in  rejecting  the  same  at  the  belated stage that too without adverting to all the  materials  which  are  available  in  the  plaint.  The  High Court has also committed the same error in  affirming the order of the trial court.”

16. The question which survives for  consideration is  as  to what is  the  

scope of Section 149 of the Code?   

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In Mahasay Ganesh Prasad Ray & Anr. v. Narendra Nath Sen & Ors.  

[AIR 1953 SC 431], this Court held that the court fee is a matter between the  

State and the suitor.   

Mr.  Venugopal  would  urge  that  the  said  observations  were  made  

keeping in view the fact that the contention in that behalf had been raised at  

the appellate stage.  It may be so, but it is well known that the appeal is  

continuation of the suit.  

Yet again in  Mahanth Ram Das v. Ganga Das, [AIR 1961 SC 882),  

this Court held:-

“5. The case is an unfortunate and unusual one.  The application  for  extension of  time was  made  before  the  time  fixed  by  the  High  Court  for  payment of deficit court fee had actually run out.  That  application  appears  not  to  have  been  considered at all, in view of the peremptory order  which  had  been  passed  earlier  by  the  Division  Bench hearing the appeal, mainly because on the  date of the hearing of the petition for extension of  time, the period had expired. The short question is  whether  the  High Court,  in  the  circumstances  of  the case, was powerless to enlarge the time, even  though  it  had  peremptorily  fixed  the  period  for  payment.  If  the  Court  had  considered  the  application  and  rejected  it  on  merits,  other  considerations  might  have  arisen;  but  the  High  Court in the order quoted, went by the letter of the  original order under which time for payment had  been  fixed.  Section  148  of  the  Code,  in  terms,  allows  extension  of  time,  even  if  the  original  

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period  fixed  has  expired,  and  Section  149  is  equally liberal. A fortiori, those sections could be  invoked by the applicant,  when the time had not  actually expired. That the application was filed in  the vacation when a Division Bench was not sitting  should  have  been  considered  in  dealing  with  it  even  on  13-7-1954,  when  it  was  actually  heard.  The order,  though passed after  the  expiry of  the  time fixed by the original judgment,  would have  operated from 8-7-1954. How undesirable it is to  fix time peremptorily for a future happening which  leaves the Court powerless to deal with events that  might  arise  in  between,  it  is  not  necessary  to  decide in this appeal. These orders turn out, often  enough to be inexpedient. Such procedural orders,  though peremptory (conditional decrees apart) are,  in  essence,  in  terrorem,  so  that  dilatory  litigants  might  put  themselves  in  order  and  avoid  delay.  They do not,  however,  completely  estop a  court  from  taking  note  of  events  and  circumstances  which happen within the time fixed. For example,  it cannot be said that, if the appellant had started  with the full money ordered to be paid and came  well  in  time  but  was  set  upon  and  robbed  by  thieves  the  day  previous,  he  could  not  ask  for  extension of time, or that the Court was powerless  to extend it. Such orders are not like the law of the  Medes and the Persians. Cases are known in which  Courts  have  moulded  their  practice  to  meet  a  situation such as this and to have restored a suit or  proceeding,  even  though  a  final  order  had  been  passed. We need cite only one such case, and that  is  Lachmi  Narain  Marwari v.  Balmakund  Marwari. No  doubt,  as  observed  by  Lord  Phillimore, we do not wish to place an impediment  in  the  way  of  Courts  in  enforcing  prompt  obedience and avoidance of delay, any more than  did the Privy Council. But we are of opinion that  in  this  case  the  Court  could  have  exercised  its  powers first on 13-7-1954, when the petition filed  

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within  time  was  before  it,  and  again  under  the  exercise  of  its  inherent  powers,  when  the  two  petitions under Section 151 of the Code of Civil  Procedure were filed.  If  the High Court  had felt  disposed to take action on any of these occasions,  Sections  148  and  149  would  have  clothed  them  with  ample  power  to  do  justice  to  a  litigant  for  whom it entertained considerable sympathy, but to  whose aid it erroneously felt unable to come.”

In  Mannan  Lal v.  Mst.  Chhotaka  Bibi  (Dead)  by  LRs.  B.  Sharda  

Shankar & Ors. [ (1970) 1 SCC 769], it was held:

“17. On a parity of reasoning it is difficult to see  why  if  a  memorandum  of  appeal  insufficiently  stamped is  not to be rejected as barred under the  Limitation Act, why a different conclusion should  flow as regards compliance with the Court Fees Act  in view of the express provisions of Section 149 of  the Code. In our opinion Section 149 will cure the  defect as from the date when the memorandum of  appeal was filed alike for the purpose of Limitation  Act and the Court Fees Act and the appeal must be  treated as one pending on 9th November 1962 and  as such unaffected by Section 3 of the U.P. Act of  1952.

In  Wajid  Ali  v. Isar  Bano, Section  149  was  interpreted as a proviso to Section 4 of the Court  Fees Act in order to avoid contradiction between  the two sections. The court was, however, careful  to lay down that discretion had to be exercised in  allowing deficiency of court fees to be made good  but once it was done a document was to be deemed  to have been presented and received on the date on  which it was originally filed. This was a case of a  plaint.”

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The said dicta was reiterated by a three judge bench of this Court in  

Ganapathy Hegde  v. Krishnakudva, [(2005) 13 SCC 539] in the following  

words :-

“5. In our opinion, the High Court was not right  in forming the opinion which it did. The proviso to  Order 7 Rule 11 CPC is attracted when the time for  payment of court fee has been fixed by the court  and the court  fee is not supplied within the time  appointed by the court. In the case at hand, though  the plaint as originally filed was not affixed with  the requisite court fee stamps, but before the suit  was registered, the deficit court fee was supplied.  The present one is not a case where the court had  fixed the time for payment of requisite stamp paper  which  was  not  done  within  the  time  fixed  and  thereafter the plaintiff was called upon to seek an  extension of  time.  Had that  been the  case,  then,  under  the  proviso,  the  plaintiff  would have been  called upon to assign and show the availability of  any  cause  of  an  exceptional  nature  for  delay  in  supplying the requisite stamp paper within the time  fixed  by  the  court.  The  trial  court  was  also  empowered under Section 149 CPC to extend the  time. In the present case, the order passed by the  trial court accepting the deficit  court fee paid on  23-2-2000, thereafter registering the suit on 10-4- 2000 and consequently the order dated 3-11-2001  rejecting  the  defendant-respondents’  application  under  Order  7  Rule  11  CPC  were  perfectly  in  accordance  with  law  and  within  the  discretion  conferred on the trial  court  with which the High  Court ought not to have interfered in exercise of  the  jurisdiction  vested  in  the  High  Court  under  Section 115 CPC. The order of the High Court, if  allowed to  stand,  is  likely  to  occasion failure  of  justice.”

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Yet again in K.C. Skaria  v.  Govt. of State of Kerala & Anr. [(2006) 2  

SCC 285], it was held:

“20. The appellant  next  attempted to  press  into  service Section 149 CPC to contend that he ought  to  have  been  given  an  opportunity  to  pay  the  deficit  court  fee on the total  amount due for the  work done.  Section  149 provides  that  where  the  whole or any part of court fee prescribed for any  document 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  court  fee  had  been  paid  in  the  first  instance. Section 4 of the Court Fees Act bars the  court from receiving the plaint if it does not bear  the  proper  court  fee.  Section  149  acts  as  an  exception to the said bar, and enables the court to  permit the plaintiff to pay the deficit court fee at a  stage  subsequent  to  the  filing  of  the  suit  and  provides  that  such  payment,  if  permitted  by  the  court, shall have the same effect as if it had been  paid in the first instance. Interpreting Section 149,  this  Court in  Mannan Lal v.  Chhotaka Bibi held  that  Section  149  CPC  mitigates  the  rigour  of  Section  4  of  the  CF Act,  and  the  courts  should  harmonise the provisions of the CF Act and CPC  by reading Section 149 as a proviso to Section 4 of  the CF Act,  and allowing the deficit  to be made  good within the period to be fixed by it. This Court  further  held  that  if  the  deficit  is  made  good,  no  objection could be raised on the ground of bar of  limitation, as Section 149 specifically provides that  

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the document is to have validity with retrospective  effect.”

Mr. Venugopal would, however,  contend that those observations in  

that case were made holding that the conduct on the part of the complainant  

was not bona fide.  

17. For the reasons aforementioned,  the  impugned judgment cannot  be  

sustained.  It is set aside accordingly.  The appeal is allowed.  However, in  

the facts and circumstances of the case, there shall be no order as to costs.  

………………………….J. [S.B. Sinha]

..…………………………J.     [Deepak Verma]

New Delhi; July 23, 2009             

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