Mandadi Krishna Reddy Vs. Guggula Sreenivas Reddy

Mandadi Krishna Reddy vs Guggula Sreenivas Reddy

Disposition Petition allowed Court Andhra Pradesh Decided Sep 13, 2004

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Citation: sooperkanoon.com/443300
Court: Andhra Pradesh High Court
Judge: G. Rohini, J.
Decided On: Sep 13, 2004
Case Number: CRP No. 2678 of 2004
Subject: Civil
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulation...

Key legal issue: Civil
Outcome / disposition: Petition allowed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Sections 148 and 149 - Order 7, Rule 11; Code of Civil Procedure (CPC) , 1999

Parties & Advocates

Appellant / Petitioner

Mandadi Krishna Reddy

Advocate E.V.S.S. Acharyulu, Adv.

Respondent

Guggula Sreenivas Reddy

Advocate J. Nataraj Sarma, Adv.

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Sections 148 and 149 - Order 7, Rule 11; Code of Civil Procedure (CPC) , 1999
Reported In: 2004(6)ALD638

Excerpt

.....of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to..........for want of certain information from the party, the plaint could not be resubmitted in time and that the delay is not intentional. it is relevant to note that even while resubmitting the plaint on 13-2-2003, the deficit court fees was not paid. the court below ordered notice to the defendant on the said application. the defendant filed counter-affidavit stating that no sufficient cause has been made out to condone the inordinate delay in representing the suit and at any rate since the party failed to give any affidavit, the application cannot be maintained and that it is nothing but abuse of the process of the court.3. the court below having heard both sides though held that the plaintiff was not showing any interest in prosecuting the suit and that he did not choose to comply with the office objections even after lapse of 1329 days, concluded that he is inclined to give one more opportunity to the plaintiff for complying with the objections including the payment of deficit court fee. accordingly, la. no. 571 of 2003 was allowed subject to the condition that the plaintiff shall comply with the objections pointed out by the court on 17-6-1999 including the payment of the deficit court fees of rs. 4,226/- on or before 19.1.2004 failing which the petition stands dismissed. the said order dated 7.1.2004 is under challenge in this revision petition.4. i have heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondent and perused the material on record.5. as can be seen from the facts narrated above, admittedly, the suit was presented with insufficient court fee. it was returned on 17-6-1999, and was represented on 13-2-2003 without paying the deficit court fee. though an application has been filed under section 148 of c.p.c. the plaintiff never sought the leave of the court for payment of deficit court fee, but only sought enlargement of time for resubmitting the plaint.6. at the outset, it is to be noted that as per the.....

Full Judgment

ORDER

G. Rohini, J.

1. Revision petitioner is the defendant in OS No. 31 of 2004 on the file of the Court of H-Additional Senior Civil Judge, Warangal.

2. The plaintiff/respondent herein filed OS No. 31 of 2004 seeking a decree for recovery of Rs. 2,77,500/- alleged to be due from the defendant. Whereas the Court fee payable on the plaint was Rs. 5,226/-, admittedly the plaintiff presented the plaint along with a Court Fee of Rs. 1,000/-. The plaint was presented on 7-5-1997 and the same was returned on 17-6-1999 granting seven days time for complying with the objections including the payment of deficit Court fee. The plaint was resubmitted on 13-2-2003 along with IA No. 571 of 2003 filed under Section 148 of C.P.C. seeking to condone the delay of 1,329 days in resubmitting the plaint. The Counsel for the plaintiff who has sworn to the affidavit filed in support of the said application stated that for want of certain information from the party, the plaint could not be resubmitted in time and that the delay is not intentional. It is relevant to note that even while resubmitting the plaint on 13-2-2003, the deficit Court fees was not paid. The Court below ordered notice to the defendant on the said application. The defendant filed counter-affidavit stating that no sufficient cause has been made out to condone the inordinate delay in representing the suit and at any rate since the party failed to give any affidavit, the application cannot be maintained and that it is nothing but abuse of the process of the Court.

3. The Court below having heard both sides though held that the plaintiff was not showing any interest in prosecuting the suit and that he did not choose to comply with the office objections even after lapse of 1329 days, concluded that he is inclined to give one more opportunity to the plaintiff for complying with the objections including the payment of deficit Court fee. Accordingly, LA. No. 571 of 2003 was allowed subject to the condition that the plaintiff shall comply with the objections pointed out by the Court on 17-6-1999 including the payment of the deficit Court fees of Rs. 4,226/- on or before 19.1.2004 failing which the petition stands dismissed. The said order dated 7.1.2004 is under challenge in this revision petition.

4. I have heard the learned Counsel for the petitioner as well as the learned Counsel appearing for the respondent and perused the material on record.

5. As can be seen from the facts narrated above, admittedly, the suit was presented with insufficient Court fee. It was returned on 17-6-1999, and was represented on 13-2-2003 without paying the deficit Court fee. Though an application has been filed under Section 148 of C.P.C. the plaintiff never sought the leave of the Court for payment of deficit Court fee, but only sought enlargement of time for resubmitting the plaint.

6. At the outset, it is to be noted that as per the Code of Civil Procedure (Amendment) Act No. 46 of 1999 with effect from 1-7-2002 under Section 148 of C.P.C. the time that can be enlarged shall not exceed 30 days in total. Thus, on the face of it, the order passed by the Court below while allowing the application, thereby enlarging the period for resubmission of the plaint by 1329 days is erroneous and suffers from material irregularity in exercise of jurisdiction conferred under Section 148 of C.P.C.

7. That apart, though it is true that under Section 149 of CPC the Court in its discretion may allow a person to make up deficiency of Court fee at any stage of the proceedings even without any application by the party, such discretion is required to be exercised reasonably keeping in view the principles of law and taking into consideration the facts and circumstances of the case on hand. In the case on hand, it was not the case of the plaintiff that there was any bona fide mistake in calculation of the Court fee payable. It was not even stated that due to financial difficulties or for some other valid reason, he was unable to pay the proper Court fees. The fact that the plaint was represented after about four years without paying the deficit Court fees and without explaining the reasons and without seeking the leave of the Court makes it clear that non-payment of proper Court fees was deliberate. The Court below grievously erred in exercising the discretion in favour of such a party. It is relevant to note that the plaintiff failed to offer any explanation for the default on his part in payment of proper Court fee in the first instance and particularly for nonpayment of deficit Court fee even after the period of about four years. In such circumstances, the Court below ought to have rejected the plaint under Order 7, Rule 11 (c) of CPC which mandates that where the plaintiff on being required by the Court to pay the deficit Court fee within the time to be fixed fails to do so the plaint shall be rejected. It is to be noted that the plaint initially presented was returned on 17-6-1999 granting seven days time for complying the objections including the payment of deficit Court fee. Admittedly, the plaintiff failed to do so and resubmitted the plaint after about for years on 13-2-2003. If that be so, in the light of the mandatory provisions of Order 7, Rule ll(c) of CPC the plaint is liable to be rejected.

8. Learned Counsel for the respondent vehemently contended that since no prejudice is caused to the defendant in permitting the suit to proceed and particularly since the order impugned cannot be said to be without jurisdiction, the interference of this Court is not warranted. The learned Counsel also contended that in pursuance of the impugned order, the plaintiff paid the deficit Court fee and thereupon the plaint was ordered to be registered on 19.1.2004 and thus the impugned order dated 7.1.2004 merged with the later order and therefore this revision petition against the order dated 7.1.2004 is not maintainable. The further contention raised by the learned Counsel is that the revision petition filed under Article 227 of the Constitution of India is not maintainable since the remedy under Section 115 of CPC is available.

9. I am unable to agree with any one of the contentions raised by the learned Counsel. Since the initial order made in IA No. 571 of 2003, dated 7.1.2004 itself suffers from a patent erroneous exercise of jurisdiction, the mere fact that a consequential order has been passed in immaterial. It is also not open to the Court to go into the merits of the case at this stage and therefore the question whether any prejudice is caused to either party cannot be gone into.

10. As held by the Supreme Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 (5) Supreme 390, the power of superintendence conferred on the High Court under Article 227 of the Constitution of India is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction.

11. Having regard to the facts and circumstances of the case on hand, I am of the view that this is a fit matter for invoking the jurisdiction under Article 227 of the Constitution of India and the revision petition is maintainable. The order impugned which on the face of it is illegal and vitiated by erroneous exercise of jurisdiction cannot be sustained and is accordingly set aside.

12. Civil revision petition is accordingly allowed. No order as to costs.

Same Court & Year Andhra Pradesh · 2004 Same Parties Mandadi Krishna Reddy vs Guggula Sreenivas Reddy Same Subject Civil Same Judge G. Rohini, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Sections 148 and 149 -...

Civil