Whether application for extension of time to pay deficit court fees is maintainable after rejection of plaint?

As against the order rejecting the Plaint for failure to deposit the Court fees within the prescribed period, no doubt remedy of Appeal is available. However, as has been held in the case of Niranjan Alloys (supra), when there is no controversy as regards the liability to pay the demanded Court fees, the quantum of Court fees an application simplicitor seeking extension of time to pay such Court fees can always be taken out under section 151 of Code of Civil Procedure as was taken out in the present case.

15. In the above regard, reference can be made to the observations made in paragraph 11 and 18 of the Niranjan Alloys (supra) which read as follows:

11. There cannot be any duality of opinion that an order rejecting a plaint Under Order 7 Rule 11 of C.P.C., for nonpayment of the additional courtfees demanded is appealable as a decree. The Apex Court held in Shamsher Singh v. Rajinder Prashad and Ors. (supra) that it is appealable as a decree and even a second appeal would lie Under Section 100 of C.P.C. on the ground that the decision of the first appellate Court on the interpretation of Section 7(iv)(c) is a question of law. It cannot be, however, overlooked that such rejection of plaint would be appealable when there is a controversy raised regarding correctness of the demand for courtfees under any particular provisions of the law. Where, there is controversy  regarding interpretation of the provisions of the Court fees Act or Suits Valuation Act then the plaintiff is required to prefer an appeal against adverse finding which entailed dismissal of the suit. In the present case, however, there was no controversy raised by the plaintiff regarding liability to pay the demanded court fees. Nay, he had applied for payment of such court fees and was permitted to pay the same. He had deposited the cheque with the Court, although, it could not be encashed. He immediately filed next application, explaining that his bank account was having sufficient funds but due to fault of the Bank, the cheque was returned. This fact was not controverted by the petitioner before the trial Court. It appears, therefore, that there was sufficient substratum before the trial court to reach conclusion that the demand for courtfees was acceptable to the plaintiff/respondent herein.

18. I am inclined to hold that the time could be extended by the trial Court irrespective of the fact that the remedy of appeal was also available. For, it was just a formality to prefer an appeal inasmuch as the plaintiff had not raised any question related to interpretation of the Bombay Court fees Act or the Suits Valuation Act. Secondly, the plaintiff submitted the application immediately after he came to know about bouncing of the cheque. There was no substratum available to say that the cheque was returned only because cash amount was not at his credit. His statement on affidavit was not controverted in this context and moreover, the plaintiff had expressed willingness to deposit the deficit courtfees immediately without demur. The impugned order has not caused any prejudice to the rights of the petitioner. The rejection of the application would have, on the other hand, caused grave injustice to the plaintiff as he would have been put to excessive financial burden without a very serious lapse on his part. Normally, when there is express provision in the C.P.C. then the powers Under Section 151 C.P.C. may not be invoked. Still, however, such remedy must be of exhaustive character and the relevant provision should be such that there is express or implied prohibition on the exercise of powers Under Section 151 of C.P.C. The intention of the legislature can be gathered from proviso appended to Rule 11 of Order 7. Considering the purport of the proviso and peculiar facts of the instant case, there appears no serious error committed by the trial Court while exercising the inherent powers Under Section 151 of the C.P.C. There is no perversity committed by the trial Court in this behalf. It follows, therefore, that interference by this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India is not called for.

Bombay High Court

Sou. Bhavana Kirit Vora And Ors vs Kushal Surendra Shah And Ors on 11 March, 2019

WRIT PETITION NO.6141 OF 2017 WITH WRIT PETITION NO.11511 OF 2015 (NOB)

Bench: M.S. Sonak

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Whether defendant can approach higher courts for challenging inadequate court fees paid by plaintiff?

In this regard, the two-Judge Bench has reproduced two passages from Rathnavarmaraja v. Vimla MANU/SC/0361/1961 : AIR 1961 SC 1299 which we think seemly to reproduce:

The Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the Defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the Plaintiff and by entertaining petitions preferred by the Defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the Defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the Plaintiff has paid adequate court fee on his plaint. Whether proper court fee is paid on a plaint is primarily a question between the Plaintiff and the State. How by an order relating to the adequacy of the court fee paid by the Plaintiff, the Defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court Under Section 115 of the Code of Civil Procedure is strictly conditioned by Clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the subordinate court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The Defendant who may believe and even honestly that proper court fee has not been paid by the Plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3396 of 2017 (Arising out of SLP (C) No. 33692 of 2016)

Decided On: 10.08.2017

J. Vasanthi and Ors. Vs.  N. Ramani Kanthammal (D) Rep. by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dipak Misra, A.M. Khanwilkar and Mohan M. Shantanagoudar, JJ.

Citation: (2017) 11 SCC 852.

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Whether it is permissible to pay court fees at later stage of proceeding?

Section 149 of the Civil Procedure Code prescribes a discretionary power which empowers the Court to allow a party to make up the deficiency of court fee payable on plaint, appeals, applications, review of judgment etc. This Section also empowers the Court to retrospectively validate insufficiency of stamp duties etc. It is also a usual practice that the Court provides an opportunity to the party to pay court fee within a stipulated time on failure of which the Court dismisses the appeal. In the present case, the appellant filed an application for extension of time for remitting the balance court fee which was rejected by the learned sub Judge. It is the claim of the appellant that he was unable to pay the requisite amount of court fee due to financial difficulties. It is the usual practice of the court to use this discretion in favour of the litigating parties unless there are manifest grounds of mala fide. The Court, while extending the time for or exempting from the payment of court fee, must ensure bona fide of such discretionary power. Concealment of material fact while filing application for extension of date for payment of court fee can be a ground for dismissal. However, in the present case, no opportunity was given by the learned sub Judge for payment of court fee by the appellant which he was unable to pay due to financial constraints. Hence, the decision of the learned sub Judge is wrong and is liable to be set aside and accordingly set aside.
Reportable

Supreme Court of India

Manoharan vs Sivarajan & Ors on 25 November, 2013

Bench: Sudhansu Jyoti Mukhopadhaya, V. Gopala Gowda

Citation:(2014) 4 SCC 163  

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Whether appellate court has power to direct payment of deficit court fees?

In Paramu v. Balan (2001 (3) KLT 803) a learned

Judge of this Court examined the question as regards the power

of the appellate court to give direction with respect to the

payment of proper court-fees. After referring to sub-section (4)

of Section 12 of the Kerala Court Fees and Suit Valuation Act it

was held that, the appellate court has ample power to direct

payment of deficit court-fees as is done by the lower appellate

court.

       65. In P.P.S. Pillai v. Catholic Syrian Bank (2000 (3)

KLT 629) a Division Bench of this Court held that, sub-section

(4) of Section 12 of the Kerala Court Fees and Suit Valuation Act

confers jurisdiction on the appellate court to consider either of its

own motion or on the application of any of the parties the

correctness of the order passed by the trial court affecting the fee

payable on the plaint. If the court of appeal decides that the fee

paid in the lower court was not sufficient, the appellate court

shall require the parties liable to pay the deficit court-fees, within

a time as may be fixed by it. The further provision is that, 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,

the appeal shall be dismissed. The principle laid down in P.P.S.

Pillai's case (supra) has been reiterated by another Division

Bench of this Court in Peter Cherian v. Abraham (2007 (4)

SCC 680).

IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                               PRESENT:

                 MR.JUSTICE P.R.RAMACHANDRA MENON
                                                      &
                     MR. JUSTICE ANIL K.NARENDRAN

                4TH DAYOF NOVEMBER 2016

                                          RFA.No. 140 of 2010
                                       

                     K.K.GOVINDAN 
Vs

                     K.G.PREMSANKAR, I

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Principles to be followed by court for permitting payment of deficit court fees as per S 149 of CPC

 It is well settled that the judicial discretion is required to be exercised in accordance with the settled principles of law. It must not be exercised in a manner to confer an unfair advantage on one of the parties to the litigation. In a case where the plaint is filed within the period of limitation prescribed by law but with deficit court fee and the plaintiff seeks to make good the deficit of the court fee beyond the period of limitation, the Court, though has discretion under Section 149 CPC, must scrutinise the explanation offered for the delayed payment of the deficit court fee carefully because exercise of such discretion would certainly have some bearing on the rights and obligations of the defendants or persons claiming through the defendants. (The case on hand is a classic example of such a situation.) It necessarily follows from the above that Section 149 CPC does not confer an absolute right in favour of a plaintiff to pay the court fee as and when it pleases the plaintiff. It only enables a plaintiff to seek the indulgence of the Court to permit the payment of court fee at a point of time later than the presentation of the plaint. The exercise of the discretion by the Court is conditional upon the satisfaction of the Court that the plaintiff offered a legally acceptable explanation for not paying the court fee within the period of limitation.

Reportable

Supreme Court of India

A. Nawab John & Ors vs V. N. Subramaniyam on 3 July, 2012

Bench: P. Sathasivam, J. Chelameswar

Citation:2013(1) MHLJ 1  

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