2009 (7) TMI 1311 - SC - Indian Laws

Condonation of delay in filing first appeal - delay of 272 days - deficit court fees stamp - An application under Order VII Rule 11(c) was moved by the respondents 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 u/s 149 r/w Section 151 of 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 dismissed the said application. Aggrieved thereby, the respondents preferred a Revision Petition under Article 227 of the Constitution of India before the High Court, which has been allowed by reason of the impugned judgment. Appellant is, thus, before us. HELD THAT - 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. The respondents in their written statement did not raise any issue with regard to the correctness or otherwise of the orders dated 7th October, 1998, 8th November 1998, 20th November, 1998 and 21st January, 1999. Rightly or wrongly, the plaint was accepted. The deficit court fee has been paid. The court was satisfied with regard to the bona fide of the plaintiff. Hearing of the suit proceeded; not only issues were framed but the witnesses on behalf of the parties were also examined by both the parties. It is difficult to believe that from 10th January 2001 to 4th January 2008, the respondents or their counsel did not have any occasion to inspect the records. Any counsel worth itself would not only do so but even without doing so would address himself a question as to why a suit filed on 4th October 1998 was entertained in the year 2000. The suit was at one point of time decreed ex parte. The same was set aside on certain conditions. Evidently, the conditions laid down had been satisfied only upon obtaining an extension of time. 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 u/s 149 of the Code have to be rejected. 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. 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 u/s 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. 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. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed.

Issues Involved:
1. Legality of the orders extending time for payment of deficit court fees.
2. Jurisdiction and discretion of the trial court under Section 149 of the Code of Civil Procedure (CPC).
3. Maintainability of the application under Order VII Rule 11(c) of the CPC for rejection of the plaint.
4. Requirement of notice to the respondents before extending time for payment of court fees.
5. Validity of the orders passed without hearing the respondents.
6. Impact of non-mentioning or wrong mentioning of statutory provisions in applications.

Detailed Analysis:

1. Legality of the orders extending time for payment of deficit court fees:
The appellant filed the suit with a deficit court fee and sought extensions for payment. The trial court granted extensions on multiple occasions. The High Court's impugned judgment set aside these orders, but the Supreme Court held that the legality of the orders dated 7.10.1998, 8.11.1998, 20.11.1998, and 21.1.1999, having not been questioned earlier, could not be set aside by the impugned judgment. The court emphasized that once an application under Section 149 is allowed, Order VII Rule 11(c) of the CPC will have no application.

2. Jurisdiction and discretion of the trial court under Section 149 of the CPC:
Section 149 of the CPC grants the court discretion to allow payment of deficit court fees at any stage, and upon such payment, the document is deemed to have been properly stamped from the outset. The appellant argued that the trial court exercised its jurisdiction judiciously under Section 149, considering the non-availability of court fee stamps. The Supreme Court supported this view, stating that payment of court fees is a matter between the State and the suitor, and the trial court acted within its jurisdiction.

3. Maintainability of the application under Order VII Rule 11(c) of the CPC for rejection of the plaint:
The respondents filed an application under Order VII Rule 11(c) for rejection of the plaint on the grounds of limitation and non-payment of court fees within the stipulated time. The Supreme Court held that once the court had allowed the application under Section 149, Order VII Rule 11(c) could not be invoked. The application for rejection of the plaint was deemed mala fide, especially since the respondents had not raised any objections in their written statement or during the earlier stages of the proceedings.

4. Requirement of notice to the respondents before extending time for payment of court fees:
The respondents argued that they should have been given notice before the trial court extended the time for payment of court fees. The Supreme Court acknowledged that ideally, notice should be given, but held that the absence of notice did not invalidate the orders. The court emphasized that procedural orders are not like the law of the Medes and the Persians and can be adjusted based on circumstances.

5. Validity of the orders passed without hearing the respondents:
The Supreme Court held that orders passed without hearing the respondents are not automatically null and void. The court cited precedents to assert that an order passed by a court having jurisdiction remains valid unless set aside. The respondents' failure to challenge the orders earlier and their subsequent conduct indicated acceptance of the orders.

6. Impact of non-mentioning or wrong mentioning of statutory provisions in applications:
The appellant's applications mentioned Section 148 instead of Section 149 of the CPC. The Supreme Court held that mentioning a wrong provision does not invalidate an order if the court had the requisite jurisdiction. The court cited precedents to support the view that the substance of the application and the court's jurisdiction are more important than the specific statutory provision mentioned.

Conclusion:
The Supreme Court set aside the impugned judgment of the High Court, allowing the appeal. The court emphasized that procedural lapses, like non-mentioning of the correct statutory provision or lack of notice, do not automatically nullify judicial orders, especially when the court has acted within its jurisdiction and the parties have not raised timely objections. The appeal was allowed without any order as to costs.

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