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Code of Civil Procedure, 1908: O.7 r.11, s.149 r.w. s.151 – Rejection of plaint – Filing of plaint in 1998 on payment of deficit court fees for the reason that stamp fees papers were not available in the Sub-Treasury – Time granted – Deficit court fees deposited and delay condoned – Respondent filed written statement – No objection raised therein with regard to the delay in payment of court fees – In 2008, defendant filed application seeking rejection of plaint urging for the first time that suit was barred by limitation as the extension of time granted by trial court under s.149 r.w. s.151 and condonation of delay was passed without notice to him – Held: If court fees were 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 prayer for extension of time to deposit deficit court fees – Once an application under s.149 is allowed, O.7, R.11(c) would not have application. The appellant filed a suit for recovery of money against the respondents on 4.10.1998. The plaint was accompanied by a court fee at rupee 1 only. He also filed an application under s.148 CPC r.w. s.151 seeking six weeks time for payment of the deficit court fees, which was granted. Another application was filed on 8.11.1998 seeking time for payment of deficit court fees on the premise that stamp fees papers were not yet available in the Sub-Treasury, which was also allowed. He however, deposited the deficit court fee stamp on 17.2.1999, which was accepted by the Subordinate Judge. An application u/s.151 CPC for condoning the delay of 272 days in presenting the plaint was allowed by trial court by order dated 2.11.2000. On 17.2.2003, respondent filed written statement wherein, no objection was raised with regard to the delay in payment of court fees and as such no issue was also framed in this regard. Thereafter respondent remained absent and an ex parte decree was passed on 29.9.2004. The ex parte decree was set aside on payment of costs. In 2008, the respondent filed an application under order 7 rule 11 CPC seeking for rejection of plaint urging for the first time that the suit presented on 5.10.1998 was barred by limitation as the extension of time granted by trial court under s.149 r.w. s.151 CPC and condonation of delay in refiling was passed without issuing notice to him. The trial court dismissed the said application. High Court allowed the revision petition filed under Article 227 of the Constitution of India. Hence the appeal. Allowing the appeal, the Court HELD: 1. When a plaint is presented ordinarily it should be accompanied with the requisite court fees payable thereupon. It, however, does not mean that whenever a plaint is presented with deficit court fee, the same has to be rejected outrightly. Section 149 CPC provides for the court’s power to extend the period. 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. [Para 7] [353-C-D; 354-B-E] 2. Appellant while presenting the plaint 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) CPC, 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 would have no application. 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 be mala fide. If the trial judge did not entertain the said plea, the High Court should not have interfered therewith. [Para 8] [344-F- H; 345-A-D] 3. 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 was 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 were satisfied only upon obtaining an extension of time. [Para 9] [355-D-G] K. Natarajan vs. P.K. Rajasekaran (2003) 2 M.L.J. 305; Ramiah & ANOTHER 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, referred to. 4. The Code does not envisage a situation where the civil court could hear a defendant before registering a plaint. 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. [Para 10] [356-C] 5. 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 have to be rejected. [Para 11] [356-D-F] Buta Singh (Dead) By LRs. v. Union of India (1995) 5 SCC 284, referred to. 6. 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. [Para 12] [357-D-E] Baljinder Singh v. Rattan Singh (2008) 11 SCALE 198, relied on State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors. AIR 1996 SC 906, referred to. 7. 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 148 CPC is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 CPC. 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 CPC. Only because a wrong provision was mentioned by the appellant, the same 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. [Paras 13 and 16] [306-D-G; 359-C-D] 8. 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) CPC could not have been invoked at that point of time. [Para 14] [360-E] Mahasay Ganesh Prasad Ray & ANOTHER v. Narendra Nath Sen & Ors. AIR 1953 SC 431; Mahanth Ram Das v. Ganga Das AIR 1961 SC 882; Mannan Lal v. Mst. Chhotaka Bibi (Dead) by LRs. B. Sharda Shankar & Ors. (1970) 1 SCC 769; Ganapathy Hegde v. Krishnakudva (2005) 13 SCC 539; K.C. Skaria v. Govt. of State of Kerala & ANOTHER (2006) 2 SCC 285, relied on. Ram Sunder Ram v. Union of India & Ors. 2007 (9) SCALE 197; N. Mani v. Sangeetha Theatres & Ors. (2004) 12 SCC 278; Saleem Bhai & Ors., v. State of Maharashtra & Ors. (2003) 1 SCC 557; Ram Prakash Gupta v. Rajiv Kumar Gupta & Ors. (2007) 10 SCC 59, referred to. Case Law Reference: (2003) 2 M.L.J. 305 referred to Para 9 (2007) 5 MLJ 559 referred to Para 9 2005 (5) CTC 401 referred to Para 9 (2007) 1 MLJ 669 referred to Para 9 (1995) 5 SCC 284 referred to Para 11 (2008) 11 SCALE 198 relied on Para 12 AIR 1996 SC 906 referred to Para 12 2007 (9) SCALE 197 referred to Para 13 (2004) 12 SCC 278 referred to Para 13 (2003) 1 SCC 557 referred to Para 15 (2007) 10 SCC 59 referred to Para 15 AIR 1953 SC 431 relied on Para 16 AIR 1961 SC 882 relied on Para 16 (1970) 1 SCC 769 relied on Para 16 (2005) 13 SCC 539 relied on Para 16 (2006) 2 SCC 285 relied on Para 16 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4643 of 2009. From the Judgment & Order dated 28.11.2008 of the High Court of Judicature at Madras at Madras in exercise of revisional jurisdiction in C.R. P.PD. No. 815 of 2008. E. Padmanabhan and V. Mohana for the Appellants. Krishnan Venugopal, R. Anand Padmanabhan, Pramod Dayal for the Respondents.

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 TrackCourt 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 8
th
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 4
th October, 1998 before the Subordinate Judge,
2Salem. The plaint was presented on 5
th October, 1998 as the 2
nd
, 3
rd and 4
th
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 8
th 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
32
nd 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.
4Feeling 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 8
th 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 8
th
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 4
th
January
2008 seeking for rejection of the plaint urging for the first time that the suit
presented on 5
th October 1998 was barred by limitation as the extension of
time granted by the trial court under Section 149 read with Section 151 of
5the 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 5
th 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
6questioned, 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.
76. 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
8(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
9of 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 Courtfees.- 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.”
10Section 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.
11It 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 7
th October, 1998,
8
th 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 4
th 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 4
th October 1998 was entertained
12in 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
13and/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.
14The 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:
15The 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 wellknown 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
16Council 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.
17In 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.”
1814. 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
19even 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?
20In 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
21period 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
22within 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.”
23The 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.”
24Yet 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
25the 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
26

 

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