ORDER
C.V. Ramulu, J.
1. This Civil Revision Petition is filed under Article 227 of the Constitution of India being aggrieved by a Judgment dated 28-1-2004 made in O.S.No.30 of 1999 on the file of the learned Principal Senior Civil Judge, Vizianagaram.
2. The petitioners are the defendants and the respondent is the plaintiff, who laid the above suit for recovery of an amount of Rs. 1,80,000/- together with interest at 24% per annum. Defendant No. 3 filed a detailed written statement, which was adopted by the other defendants, denying the various averments made in the plaint. At paragraph-17 of the written statement, it was asserted that the plaint itself was not properly presented and the same is not vaild. It appears that the plaint has been presented on 16-1 -1998 with a Court fee of Rs. 500/- On 2-3-1998, a Court fee of Rs. 1700/- was paid. Similarly, on 30-6-1998, a Court fee of Rs. 1,000/-, on 26-8-1998 a Court fee of Rs. 1,005/- and finally on 8-4-1999 a Court fee of Rs. 21/- was paid in piecemeal. Such piecemeal payment of Court fee on the suit claim, without any authority and lawful reasons therefor, amounts to playing fraud on the Court. In other words, payment of Court fee in piecemeal without any vaild orders obtained from the Court is not a valid presentation of the plaint, especially when the suit claim got barred by limitation on 27-3-1998, even according to the cause of action at paragraph-IV of the plaint. Thus, the plaint was hopelessly barred by time. Law does not contemplate extension of statutory period of limitation by such instalment payments of deficit Court fee wantonly and intentionally. No proper orders have been obtained from the Court and any extension given in this regard, even subsequently, cannot be considered as vaild institution of the suit within time.
3. After filing of written statement, issues were framed and an issue 'whether the suit is barred by limitation? was also settled for trial. Thereafter, the petitioner-defedants filed a petition under Order 14 Rule 2 of the Civil Procedure Code to try the issue of limitation i.e., issue No. 4 as a preliminary issue. The Court below, after hearing both sides, answered the said issue in favour of the plaintiff holding that the Court has got absolute power under Section 149 of the Civil Procedure Code to extend time at any stage for making good of deficit Court fee. It is only the presentation of the plaint in time, that is required and not the payment of deficit Court fee, for the purpose of limitation. Aggrieved by the said Order, the present Civil Revision Petition is filed.
4. Learned counsel for the petitioner strenuously contended that the Court below failed to appreciate that the suit was presented on 16-1-1998 with a Court fee of Rs. 500/-, whereas, even according to the plaint, the Court fee payable was Rs. 4,226/-. The plaint was returned on 21-1-1998 for payment of deficit Court fee. On representation without payment of deficit Court fee, it was again returned on 5-2-1998 for payment of deficit Court-fee. Thereafter, the plaint was returned several times for non-payment of sufficient Court fee, The dates of return of plaint are 23-2-1998,10-3-1998,19-3-1998,1-4-1998, 17-4-1998, 6-7-1998, 21-7-1998, 4-8-1998, 31-8-1998, 15-9-1998 and 1-4-1999; whereas, the limitation for filing the suit came to an end by 26-3-1998 itself. Therefore, the plaint should have been rejected as being barred by limitation for non-payment of sufficient Court fee within the period of limitation. It is unfortunate that the Court below held that under Section 149 of the Civil Procedure Code, absolute discretion is vested in it. The discretion under Section 149 of the Civil Procedure Code is a judicial discretion and the Court is not bound to exercise the discretion unless sufficient cause is shown for failure to pay the deficit Court fee or that there was a bona fide mistake in non-payment of adequate Court fee both are lacking in the present case.
5. Per contra, Ms. T.V. Sridevi, learned Counsel appearing for the respondent-plaintiff contended that it is the absolute discretion of the Court to grant time for payment of deficit Court fee. It is not, on several occasions, the time was granted for payment of deficit Court fee that makes the suit barred by limitation or amounts to non-presenting the plaint properly; the sine qua non being the presentation of the plaint in time and nothing else. Once the suit is presented within the period of limitation, the return of the plaint for the purpose of payment of deficit Court fee, any number of times, makes no difference, even if the Court fee, is not paid within the time of limitation. There is no dispute as to the fact that the presentation of the plaint was within time. Therefore, the Court below, since it has got absolute power under Section 149 of the Civil Procedure Code to extend time, at any stage, for making good the deficit Court fee, it did so. As such, the issue was rightly held in favour of the respondent-plaintiff and against the petitioner-defendants. The Court below has not committed any error calling for interference with the impugned Order, by this Court, in exercise of its powers under Article 227 of the Constitution of India.
6. I have given my earnest consideration to the respective submissions made by the learned Counsel on either side and perused the impugned Order and also other material made available on record.
7. Before going into the mertis of the case, it is relevant to note the undisputed facts. The suit was laid for recovery of Rs. 1,80,000/- for the stocks of coffee and tea purchased by the defendants from the plaintiff, on 16-1-1998. In the plaint, it was mentioned that the Court fee payable on the suit claim was Rs. 4,226/- But , on the date of presentation of the plaint i.e.,16-1 -1998, only a Court fee of Rs. 500/- was paid. The suit was returned on 21 -1 -1998 for compliance of certain office objections and also for payment of deficit Courtfee. The plaint was represented on 28-1 -1998 stating that the objections were complied with, though, in fact, the objections were not complied with. Again, the plaint was returned on 5-2-1998 for compliance of objections dated 21-1-1998. Since it was represented by paying some Court fee, it was returned on 23-2-1998. Likewise, on several occasions, i.e. on 10-3-1998, 19-3-1998, 1-4-1998, 17-4-1998, 6-7-1998, 21-7-1998,4-8-1998. 31 -8-1998,15-9-1998 and 1 -4-1999, the plaint was returned. Thus, the plaintiff took about 15 months time to pay the deficit Court fee. The plaint was returned 13 times during the period of said 15 months, whereas the limitation for filing the suit came to an end on 27-3-1998. Had the plaintiff paid the entire Court fee before 26-3-1998, probably there would not have been any problem. But, since the Court went on returning the plaint only for the purpose of payment deficit Court fee for 13 times in a span of 15 months after the date of the presentation, definitely this is a case to be examined as to whether such lenience shown by the Court below, without furnishing any reasons, in accepting the deficit Court fee after more than one year of limitation period, could be said to be a proper one and whether it is not hit by limitation and whetherthe Court below has absolute power under Section 149 of the Civil Procedure Code to condone such deficiencies. In this regard, the learned Counsel for the petitioners relied upon the decisions in S.A.Khadeer v. G. V.R.Anjaneyulu : 2003(5)ALD577 , K.Natarajan v. P.K. Rajasekhararn 2003 (9) ILD 274 (D.B.) (Madras) and Patcha Mahendra v. Koduru Penchalaiah. : 2005(4)ALD151
8. In S.A. Khadeer's case , : 2003(5)ALD577 , this Court observed as under:
4. The power of the Court to allow the person to make deficit Court fee is under Section 149 of the Civil Procedure Code. Under Section 149, where part of any Court fee prescribed is not paid, the Court may, in its discretion allow such payment of Court fee and upon such payment of the Court fee paid pursuant to the order of the Court shall be treated as if it is paid in the first instance. The power available to the Court is only under Section 149 to extend for payment of the deficit Court fee. It is a discretionary power. The discretion must be exercised by a reasoned order....
5. Under Order VII, Rule 11 of the Civil Procedure Code the plaint shall be rejected, if the requisite Court fee is not paid within the time fixed by the Court. Under proviso to Clause (d) of Rule 11 of Order VII, the Court shall not extend the time for payment of Court fee unless reasons are recorded and there are satisfactory reasons to the effect that the plaintiff was prevented by a cause of an exceptional nature from paying the Court fee. In the instant case, the only reason putforth by the plaintiff was that in spite of his best efforts, he could not secure the money for the payment of Court fee and he has filed the applications one after another and the Court below, without recording any reasons, simply extended the time from time to time. The reasons put forth by the plaintiff before the Court below are altogether different one from that of the reasons stated in the counter that he could not pay the Court fee mainly due to the non-availability of the stamps at Vijayawada, which is contrary to his own affidavit filed before the Court below. Under Order VII, Rule 11 proviso to Clause (d), the power given to the Court to extend the time for payment of the Court fee is for the cause of an exceptional nature and after recording the reasons....
9. In K.Natarajan's case (2 supra), a Division Bench of the Madras High Court held as under:
21. We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:
(1) to (3)....
(4) If the suit is presented on the last date of limitation affixing less Court fee than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court fee.
(5) In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court fee, shall order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite Court fee and the Court is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike.
(6) The discretion referred to in Section 149 of the Civil Procedure Code is a judicial discretion and the same has to be exercised in accordance with the well-established principles of law.
(7) But, however, in cases where the time granted to pay the deficit Court fee falls within the period of limitation, the defendants need not be heard.
(7A) In case where the plaint is presented well within the period of limitation with deficit Court fee and the Court returns the plaint to rectify the defect giving sometime (2 or 3 weeks), which also falls within the period of limitation, but the plaint is represented paying deficit Court fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial Court fee (not almost entirety) at the first instance, before condoning the delay in paying the deficit Court fee.
(8) In cases where part of the time granted to pay deficit Court fee falls outside the period of limitation and the deficit Court fee is paid within the time of limitation (i.e., the plaint is represented with requisite Courtfee), the Court need not wait for the objections of the defendant and the plaint can be straightaway numbered.
10. In Patcha Mahendra's case (3 supra) this Court held as under:
4. A plain reading would suggest that in its discretion the Court may at any stage allow a person to pay the Court fee which was not initially paid when the document was presented. So to say the defect of paying deficient Court fee can be allowed to be rectified by the Court at any stage of the proceedings. Payment of the Court fee falling short of prescribed amount is a curable defect at the discretion of the Court. Section 149 of C.P.C does not specifically refer to the word/term 'plaint' or 'written statement' or 'pleadings'. It only refers to the word 'document'. Ex facie the power which inheres the Court under Section 149 of C.P.C would not apply when a plaint is presented with deficit Court fee. But by reason of the judgment of Supreme Court in Mahanth Ram Das' case (4 supra) we can interpret the power of Section 149 of C.P.C as enabling the Court to permit either parties to the proceedings to cure the defect of deficit Court fee prescribed under law. It is now axiomatic that the discretion conferred on the Court is judicial discretion which has to be exercised in an objective manner. When the discretion is to be exercised in an objective manner avoding any ipse dixit or subjectivity in the consideration, the law requires every judicial forum to record reasons as evidence of consideration of the matter objectively.
5. While permitting the respondent/ plaintiff the trial Court did not pass any separate order. Time was extended to enable the plaintiff to pay the Court fee. Though the plaintiff on different occasions has shown different reasons for not paying the requisite Court fee in time, be that as it is, there cannot be any doubt that the lower Court allowed the plaintiff to pay the deficit Court fee without there being any valid reasons....
11. Whereas, the learned Counsel appearing for the respondent relied upon the decisions in Amarsingh v. Chaturabhuj AIR 1957 Rajasthan 367, Kathyee Cotton Mills v. R. P. Pillai : AIR1958Ker88 (F.B.), Nagabhushanam v. Mohd.Asharafunnisa : AIR1960AP602 . Mannan Lal v. Chhotka Bibi : [1971]1SCR253 , Jugal Kishore v. Dhanno Devi : 1973CriLJ1769 and Mohammad Mahibulla v. Seth Chaman Lal : AIR1993SC1241 and submitted that in view of Judgments the contention of the learned Counsel for the petitioners that the plaint itself could have been rejected for nonpayment of deficit Court fee in time cannot be accepted. He further stated that the Judgments relied upon by the learned Counsel for the petitioners have no application to the facts of this case.
12. In Amarsingh's case4, the Rajasthan High Court while considering the powers of the Court under Section 149 of the Civil Procedure Code observed as under:
(5)...The Memorandum was laid before a Bench which admitted the appeal. It was contended on behalf of the respondents that the appeal should be considered to have been properly presented when the necessary Court-fees stamp had been affixed and that on that view, it was barred by time. Tekchand J, held that there was no force in this contention as, in the circumstances, the Bench which admitted the appeal should be considered to have condoned the delay under Section 149 of the Civil Procedure Code.
The learned Judge sought help in arriving atthis conclusion from a decision of their Lordships of the Privy Council in the case of Faizullah v. Mauladad AIR 1929 PC 147 (r) in which their Lordships observed that
' that discretion under Section 149 of the Civil Procedure Code extends to the whole or any part of any fee prescribed and can be exercised at any stage in the case, while finally upon the extra payment being made; the document is to have the same effect as if it had been paid in the first instance'.
Their Lordships also held that as the memorandum of appeal would stand good from its date on the additional payment having been made, the appeal should be held as within time. Again, in the case of Singasan Tewari v. Gaya Tewari AIR 1935 Pat.201(1)(S), a memorandum of appeal was filed on insufficient Court-fee stamp. Limitation for the period of appeal expired on the day when the appeal was filed, but the Court did not reject the memorandum of appeal and noted that the pleader would be heard on the question of deficit.
The deficit was made good on the next following day and the stamp was cancelled and accepted in the District Judges's Office. The District Judge, however, rejected the appeal. On appeals to the High Court, it was held that when the memorandum of appeal was filed, it was open to the District Judge to reject it at once as the document was insufficiently stamped and if he did not do so, it was open to the Judge to allow the deficit to be made good, whether the document had been accepted by inadvertence, or expressly under Section 149 of the Civil Procedure Code and that when the defict was allowed to be made good, the effect of the acceptance of the deficit Court fee was that the memorandum of appeal must be treated as if it had been sufficiently stamped on the day of presentation....
13. In Kathyee Cotton Mills's case (5 supra), a Full Bench of the Kerala High Court while dealing with the powers of the Court under Sections 148 and 149 vis-a-vis Order VII Rule 11(c) of the Civil Procedure Code held that:
The time granted by the Court, under Section 149 read with Order 7 Rule 11(c), is a period fixed or granted by the Court, within the meaning of Section 148 and the Court has got power to enlarge or extend the time orginally fixed or granted by it. The Proviso to Order 7, Rule 11 does not stand in the way of the exercise of that power. Sections 148 and 149 give an absolute power and discretion to the Court to grant time and later extend the same to such period as it may think fit. The proviso is more in the nature of a guidance or a direction as to the period to which the Court can exercise its discretion. It is not in anyway mandatory in the sense that any act done in contravention of the same will be a void or an illegal act. The object of the proviso appears to have been only to put a check on the exercise of undue indulgence in favour of even undeserving parties. That it is not mandatory is to be seen from the fact that no penalty is attached in the said proviso.
14. In Nagabhushanam's case (6 supra) this Court held that:
3. The next point for consideration is whether it is always necessary in every case where time for representation has been granted, an order granting time should be made under Section 148 of the Civil Procedure Code. It would be indeed not only desirable, but necessary that this step should be pursued, for such a course is calculated to avoid needles complications. But, when that has not been specifically done, but there has been acceptance on the part of the Court of the plaint, as in this case, the exact legal position arising therefrom needs to be ascertained. A reference to inherent powers of Court thus becomes inevitable.
It is not as though condonation of delay is altogether alien to the exercise of the powers conferred under Section 151 and that calling in aid of this inherent power is not unprecedented in such circumstances. So viewing the case, that is where the time has been granted under Section 149,C.P.C.,and representation had been made after a delay of a few days, but in fact, there has been acceptance of that document as if full Court-fee has been paid as from the date of filing, it appears to me that the lower Court had acted under Section 151 C.P.C. and it cannot, therefore, be said to have acted outside its jurisdiction or with material irregularity so as to call for interference by this Court.
15. In Mannan Lal's (7 supra), the Apex Court observed that Section 149 of the Civil Procedure Code mitigates the rigour of Section 4 of the Court Fees Act, and it is for the Court to harmonise the provisions of both the Court-fees Act, and the Civil Procedure Code by reading Section 149 as proviso to Section 4 of Court-fees Act, and allowing the deficit to be made good within a period of time fixed by it. If the deficit is made good no possible objection can be raised on the ground of bar of limitation. Section 149 of the Civil Procedure Code expressly provides that the document is to have validity with retrospective effect.
16. In Jugal Kishore's case (8 supra), the Supreme Court observed under:
15. Now the above Order dismissing the application to sue as a pauper was, to say the least, otiose. The plaintiff had already withdrawn his prayer for permission to sue as pauper and the Court had agreed to the withdrawal of that prayer and to treat his application as a plaint, From that time onward the suit which had been properly instituted could only proceed on the basis that the suit was as good as a suit filed on a plaint. And in such a case it was open to the Court under Section 149 C.P.C. to order the plaintiff to pay the deficit Court fee and enlarge the period to pay such Court fee. If the Courtfee is not paid, the only order that the Court could have passed was to reject the plaint under Order 7 Rule 11(c) C.P.C. The rejection of a plaint is a decree and appealable as such. The question, therefore, is whether in this case there was any rejection of the plaint for non-payment of the deficit Court fee, The actual order passed by the Court on July 18, 1949 does not show that the plaint had been rejected. What the Court did was to reject the plaintiff's application to sue as a pauper which was a redundant order because the prayer to sue as a pauper had been withdrawn much earlier and the application to sue as a pauper, as such, did not survive for being dismissed on July 18, 1949. In law, therefore, there was no rejection of the plaint in the suit and therefore, the suit continued to remain on the file. While it continued on the file the plaintiff applied to the Court and paid the Court fee as ordered. On the acceptance of the Court fee, by the Court, the document, namely, the plaint would by virtue of Section 149 C.P.C. have the same force and effect as if such fee had been paid in the first instance viz. on the date it was presented to the Court i.e January 2,1948. In our view therefore, the suit must be regarded as properly filed on January 2, 1948; and that being admittedly the last date on which the suit could have been legally filed to avoid the bar of limitation, the plea of limitation made on behalf of the defendants must fail....
17. In Mohammad Mahibulla's case (9 supra), the Apex Court while interpreting the provisions of Sections 107(2) and 149 of the Civil procedure Code held as follows:
5. Reding these two provisions together and keeping fairness of procedure in view, we are inclined to agree with the counsel for the appellant that when the lower Appellate Court came to hold that the memorandum of appeal had not been sufficiently stamped, an opportunity should have been given by the Court to the appellant to make good the balance Court-fee within a time to be indicted and if there was failure to comply with the direction of the Court the memorandum of appeal could have been dismissed. This opportunity having not been given, we are of the view that the dismissal of the appeal was not appropriate.
18. It is also relevant to note Section 149 of C.P.C., which 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.
19. From the above provision, it is clear that the Court may, at any stage, allow a party to pay the Court fee, which was not paid earlier when the document was presented. In other words, Section 149 of C.P.C. empowers the Court to permit the party, at any stage, to pay the requisite Court fee after the institution of the suit and that such payment shall have the same effect as if it has been paid in the first instance itself. But, it is the contention of the learned Counsel for the petitioners that the said power has to be exercised judiciously and in an objective manner.
20. In Natarajan's case (2 supra), a Division Bench of the Madras High Court has elaborately considered the discretion referred to in Section 149 of C.P.C. and held that it is a judicial discretion and the same has to be exercised in accordance with the well established principles of law. However, in cases where the time granted to pay the deficit Court fee falls within the period of limitation, the defendant need not be heard, whereas, when a plaint is presented well within the period of limitation with deficit Court fee and the Court returns the plaint giving sometime (2 or 3 weeks) which also falls within the period of limitation, but it is represented paying deficit Court fee after the period of limitation, the Court is bound to hear the defendant notwithstanding the fact that the plaintiff has paid substantial Court fee (not almost entirely) at the first instance before condoning the delay in paying the deficit Court fee. The payment of substantial Court fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in. But, where there is wilful negligence in paying the Court fee and if the Court had exercised discretion without issuing notice, then it is open to the defendant to file an application under Section 151 of CPC for proper relief.
21. In S.A. Khadeer'scase (1 supra), this Court while examining the affidavit filed by the respondent-plaintiff therein before the trial Court observed that the only reason put forth by the plaintiff was that in spite of his best efforts, he could not secure the money for payment of Court fee. The plaintiff therein had filed applications one after another and the Court below, without recording any reasons, simply extended the time from time to time. The reasons put forth by the plaintiff therein before the Court below are altogether different one from that of the reasons stated in the counter filed before this Court that he could not pay the Court fee mainly due to the non-avilability of the stamps. Therefore, it was held that only in cases of exceptional nature, time for payment of deficit Court fee can be extended after recording reasons.
22. In Patcha Mehendra's case (3 supra), the trial Court while permitting the plaintiff for paying the deficit Court fee did not pass any separate order and time was extended to enable the plaintiff to pay the Court fee. Though the plaintiff on different occasions has shown different reasons for not paying the requisite Court fee in time, the trial Court allowed the plaintiff to pay the deficit Court fee without there being any valid reason. Following the decision In Khadeer's case (1 supra), it was held that Section 149 of CPC enables the Court to permit either parties to the proceedings to cure the defect of deficit Court fee prescribed under the law and the discretion conferred on the Court is judicial discretion, which has to be exercised in an objective manner and every judicial discretion requires recording of reasons.
23. From the above judgments relied upon by the learned Counsel forthe petitioners, it is clear that firstly, the power vested under Section 149 of CPC should be exercised only to mitigate the rigour of Section 4 of the Court Fees Act, and the power is not to enable the plaintiff to ask for any number of adjournments or extensions for payment of deficit Court fee. Secondly, even if the power is exercised under Section 149 of CPC, the Court is bound to record the reasons for doing so. Admittedly, in the case on hand, the limitation lapsed about two months after the date of presentation of the suit for the first time. The plaint was returned for 13 times only for making good the deficit Court fee. It is not a case where the Court fee was paid in time as mentioned in the plaint, and when the Court found it was deficit, the plaint was returned. In the plaint itself, the respondent-plaintiff categorically stated that the Courtfee payable is Rs. 4,226/-, but the same was paid in piecemeal over a period of 15 months and during that period, the plaint was returned for 13 times with the same endorsement to comply with the payment of deficit Court fee. Neither any reason was recorded for allowing the plaintiff to resubmit again and again for 13 times with deficit Court fee nor any application was filed by the plaintiff for condoning the delay in payment of deficit Court fee. Therefore, from these circumstances, the only inference that could be drawn is that the Court below has not exercised the power vested in it under Section 149 of CPC judiciously and for meeting the ends of justice. On the other hand, it shows that the discretion vested in the Court below under Section 149 of CPC has been exercised showing undue favour to the plaintiff, which cannot be said to be either discretion exercised within the parameters of Section 149 CPC or for the cause of exceptional nature, after recording reasons. Both these things are absent in the instant case. Under these circumstances, one cannot come to any other conclusion than to say that the return of the plaint for 13 times in a span of about 15 months only for payment of deficit Court fee is unreasonable and the discretion exercised by the Court below is illegal, since no notice was issued to the defendant nor any reasons were furnished for showing such undue favour to the respondent-plaintiff.
24. Now coming to the decisions relied upon by the learned Counsel for the respondent, they have no bearing to the facts of this case. In Amarsingh's case (4 supra), the deficit was made good on the next day following the day of presentation of the appeal and stamp was cancelled and accepted in the District Judge's Office. Under such circumstances, it was held that the discretion vested under Section 149 of CPC was properly exercised and the appeal was treated as if it had been stamped on the day of presentation. But, in the instant case, as stated above, the deficit Court fee was paid after more than 15 months of the presentation of the plaint.
25. In Kathyee Cotton Millscase (5 supra), it was held that Section 149 of CPC gives power to allow a person to pay deficit Court fee at any stage, which means including the stage of appeal. It deals with initial stage of allowing for payment of additional Court fee. Section 148 of CPC on the other hand comes into play when once the time has been already fixed or granted by the Court, not only in matters of Court-fees, but also in all other cases and the Court is given the power to enlarge such period originally fixed or granted even though the period originally fixed or granted may have expired. That was a case where the matter was posted to 10-12-1956 for curing defects, and ultimately on 18-12-1956 the trial Court gave time till 2-1-1957 to the plaintiffs to pay the Court-fee. The period thus granted by the Court exceeded the total period of thirty days in all (limitation); therefore, the learned Counsel for the defendant therein contended that the order granting an extension was illegal and one passed without jurisdiction, in the face of proviso framed by the Travancore-Cochin High Court. The provision for payment of Court fee is made in the Court Fees Act. Ordinarily, full Court- fees must be paid on the day when a plaint or appeal or other proceedings are instituted in the Courts. But, there may be a very genuine hard case when the full Court fees could not be paid, such as non-availability of the stamps on the date of filing, orthere may be really bona fidemistakes in the calculation of the proper Court-fee payable, or there may be cases where there will be a bona fide doubt as to the manner of valuation and the Court-fee payable. When subsequently after the period of limitation these amounts are made good, they will serve no purpopse and proceedings would become barred, but for the provision of Section 149 CPC.
26. In Nagabhushanam's case (6 supra) time has been granted under Section 149 of CPC and the plaint was presented with a delay of a few days and there has been no order granting time under Section 148 of CPC; but, in fact, there has been acceptance of that document as if full Court-fee has been paid as on the date of filing, the Court must be held to have acted under Section 151 of CPC and cannot be said to have acted outside its jurisdiction or with material irregularity so as to call for interference. Condonation of delay is altogether alien to the exercise of powers conferred under Section 151 and calling in aid of this inherent power is not unprecedented in such circumstances. Thus, that is a case where, in the given facts and circumstances, the power conferred under Section 151 of CPC was exercised and it was found that the Court has not acted outside its jurisdiction or with material irregularity.
27. Mannan Lal's case (7 supra) was a case where the suit was valued at Rs. 5,620/- including for mesne profits. The suit was dismissed and in the appeal, the value was mentioned at Rs. 4,816/-and basing on the same, the Court fee was paid and the appeal was numbered and allowed. Subsequently, it was found that the Court fee was paid less, since the value of the appeal was Rs. 8,920. Therefore the deficit court fee was made good. Underthose circumstances, it was held that the memorandum of appeal must be treated as one filed within the period fixed by the Limitation Act.
28. In Jugal Kishore's case (8 supra) the suit was laid in forma pauperis and even before the issue regarding pauperism came for trial and decision, the plaintiff offered to pay the requisite fee on the application treating it as a plaint and the Court agreed to that course and as the plaintiff therein could not pay the Court fee within the time prayed for, the Court passed an order saying that the application to sue as pauper was dismissed with costs and when afterwards the Court fee was paid, the application to sue as pauper became redundant. The plaintiff therein having paid the Court fee, the plaint, by virtue of the powers under Section 149 of CPC was treated as if it was presented to the Court on the date when the application to sue as pauper was first made.
29. In Mohammad Mahibulla's case (9 supra) the suit was laid by Wakf Board for declaration of right to passage and exemption of Court fee was given at trial stage only by a notification. Thereafter, the suit was dismissed and the Wakf Board filed an appeal by paying the same Court fee of Rs. 15A as was paid on the plaint. As a fact, the Court fee payable was Rs. 638/- On an objection raised by the respondent therein, the appellate Court by an Order dated 5-5-1996 directed the memorandum of appeal to be dismissed, which was confirmed by the High Court. Ultimately, the matter landed in the Apex Court. Under those circumstances, the Supreme Court observed that there was an exemption at the trial stage and since that was specifically confined to trial stage only, there was no ground to claim the benefit at the appellate stage also. It was held that instead of dismissing the memorandum of appeal outrightly, an opportunity should have been given to make good the deficiency and if there was failure to comply with the direction of the Court, the memorandum of appeal could have been dismissed.
30. In view of the above discussion, the decisions relied upon by the learned Counsel for the respondent are of no help to the case of the respondent.
31. In the facts and circumstances of the case, this Court is of the view that unreasonable extension of time granted by the Court below by way of returning the plaint for complying with the payment of deficit Court fee cannot be said to be either exercise of power vested under Section 149 of CPC as an absolute power or discretion vested in the interest of advancement of justice.
32. This case has to be looked into in a different angle. In a given case, the plaint may be presented within limitation by paying a Court fee of Rs. 5/- instead of Rs. 5,000/-required as per the valuation and when the plaint is returned, it was represented, but without complying with the objections properly. That has to be treated as only to gain time and to avoid the bar of limitation for extraneous resons. Such a thing should not be permitted to be done. 1Therefore, the Madras High Court in K. Natarajan's case (2 supra) rightly held that if the suit is presented on the last day of limitation affixing less Court fee than one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court fee and in such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court fee, shall order notice to the defendants and consider their objections, if any. It was further held that such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite Court fee and the Court is satisfied, on affidavit, by the party that the mistake happened due to some bona fide reason. In the instant case, there is no such bona fide reason either ascertained by the Court or furnished by the respondent-plaintiff. May be, in a given case, when the plaint is presented within the period of limitation, but due to some wrong calculation deficit Court fee was paid and the Court granted one week time and even within that one week if the limitation expires, it cannot be said that the suit was not properly presented and it is barred by limitation, since the Court can exercise such power under Section 149 of CPC to mitigate the situation, but not in a case of this nature, where unreasonable extensions of more than 13 times in a span of 15 months were granted by the Court below without furnishing any reasons nor the delay was explained by the plaintiff properly. Therefore, it must be deemed that there was no proper presentation of the suit and the Court below has not exercised the powers under Section 149 of CPC judiciously. Thus, the finding of the Court below that the power vested under Section 149 of CPC is absolute cannot be said to be correct. Further, the contention that the sine qua non in cases of this nature is only the presentation of the plaint and not its resubmission with deficit Court fee also cannot be countenanced. Therefore, the impugned Judgment of the trial Court is liable to be set aside and the preliminary issue of limitation is held against the respondent-plaintiff and in favour of the petitioner-defendants.
33. For all the above reasons, the Civil Revision Petition is allowed and the impugned Judgment is set aside. There shall be no order as to costs.