Sanjib Banerjee, J.
1. The principal relief claimed in the suit is for a declaration that the plaintiff is the absolute owner of premises No. 82B, Rafi Ahmed Kidwai Road, Calcutta - 700013. The second relief is directed against the Kolkata Municipal Corporation in that it seeks a declaration that the mutation or separation in respect of the said premises, as reflected in the Corporation records, is unlawful and null and void. The third relief claimed is for a declaration that any order issued by the controller under the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 in respect of the said premises is illegal and void.
2. About the time that the suit was instituted the plaintiff applied for interlocutory reliefs by way of GA No. 298 of 1999. There is an order of status quo relating to the mutation that is subsisting. The third defendant applied within months of the suit being filed for rejection of the plaint on the ground that the suit was barred by the provisions of the said Thika Tenancy Act of 1981. Such petition, GA No. 1989 of 1999, had been relegated to the backburner along with the plaintiff's principal interlocutory petition for nearly a decade. The parties say that there is a direction in GA No. 1989 of 1999 that the suit be not transferred to the list of undefended suits. After nearly a decade of the institution of the suit, the plaintiff plotted her next move by way of an application under Section 340 of the Criminal Procedure Code in GA No. 1881 of 2007. The third defendant woke up with a jolt upon being presented with an accusation of perjury. He engaged another set of advocates and filed afresh for rejection of the plaint or dismissal of the suit with two additional grounds added to the original challenge canvassed in the first demurer application. In GA No. 1388 of 2008, the third defendant claims that this Court had no pecuniary jurisdiction to receive the action and that since no writ of summons had been served for nine years the suit is otherwise liable to be dismissed.
3. There is a further point urged by the third defendant. He says that if a copy of the plaint relating to the suit had at all been served on him at the initial stage it was misplaced but the copy of the plaint served in the year 2008 did not tally with the plaint filed in court in a material part thereof. The third defendant states that he was constrained to invoke the provisions of the Right to Information Act, 2005 to obtain details relating to the plaint since the department refused to supply a certified copy thereof on the ground that the plaintiff had taken no steps for lodgment of the writ of summons. The third defendant refers to the information furnished on April 10, 2008 by the Assistant Master and Referee as the Public Information Officer of this Court under the said Act of 2005. The letter enlightens the plaintiff on the following counts:
1. The Plaint was presented before the Hon'ble Justice Sujit Kumar Sinha on 21st January 1999.
2. The Plaint was admitted subject to scrutiny by the department. Leave granted under Section 80 of the Civil Procedure Code.
3. The Plaint was presented with deficit court fee and M.S. Tiwari, Advocate was appointed as Receiver for the purpose of put in the deficit court fee by 27th January 1999 in default the suit shall stand dismissed. At the time of presentation of the Plaint court fee of Rs. 9/- was paid.
4. Deficit court fee of Rs. 42.75p. was paid on 25th January 1999.
5. The plaintiff for the purpose of jurisdiction has valued the suit at more than Rs. 10 lac. In paragraph 21 of the Plaint the plaintiff has stated that since the suit is for declaration a fix court fees of Rs. 20/- has been paid. For the purpose of injunction suit is valued at Rs. 200/-.
6. The plaintiff has given the address of the defendant No. 3 as of 82B, Rafi Ahmed Kidwai Road, Kolkata - 700013.
4. The third defendant insinuates that there was a motive to the erroneous plaint being forwarded. Paragraph 21 of the service copy of the plaint is totally at variance with paragraph 21 of the plaint that is filed in Court. Paragraph 21 of the erroneous copy and paragraph 21 of the plaint filed in Court are, respectively, as follows:
21. For the purpose of jurisdiction the suit is valued at more than Rs. 10 lacs and proper court fee has been paid thereon. The plaintiff undertakes to pay additional Court fee if any as and when directed by this Hon'ble Court. (Page 80 of the petition in GA No. 1388 of 2008)
21. For the purpose of jurisdiction the suit is valued at more than Rs. 10 lacs, since suit is for declaration a fix Court fees of Rs. 20/- has been paid. For the purpose of injunction suit is valued at Rs. 200/- and proper court fee has been paid thereon. The plaintiff undertakes to pay additional Court fee if any as and when directed by this Hon'ble Court. (Page 9 of the plaint)
5. The third defendant relies on the judgment reported at 1994 (2) CHN 161 (State Bank of India v. Tarit Appliances (P) Ltd.) for the proposition that unless the defendant has waived the service of the writ of summons, such writ has to be served on the defendant to ensure the defendant's appearance; or else, the suit is liable to be dismissed. The third defendant says that notwithstanding interlocutory proceedings in the Tarit Appliances suit, it was found that the writ of summons had to be served or waived and there was no third choice if the suit was to progress to trial. The third defendant refers to another judgment reported at : AIR 1954 Cal 369 (Shaw & Co. v. B. Shamaldas) where it was held that since there was no corresponding provision in the rules on the Original Side of this Court, the provisions of Order IX Rule 5 of the Civil Procedure Code would apply in the relevant situation. The third defendant seeks to draw inspiration from Shaw & Co. to suggest that if the consequence of non-service of writ of summons upon the original summons returning unserved was the dismissal of the suit, a similar fate should await a plaintiff who had taken no steps at all to effect service of the writ of summons on the defendant.
6. Without prejudice to his contention that the suit is a non-starter now for the plaintiff not having taken any steps to lodge the writ of summons, the third defendant asserts that in view of the averments in paragraph 21 of the plaint as filed, this Court had no jurisdiction to receive the suit and it should now be held as such. It is submitted that the suit would be covered by paragraph (iv) of Section 7 of the West Bengal Court Fees Act, 1970. The third defendant refers to Section 8 of the Suits Valuation Act, 1887 to suggest that the value as determinable for the computation of court fees in this suit and the value for the purposes of jurisdiction ought to have been the same. The third defendant contends that since this suit is not covered by the provisions to which Section 8 of the Suits Valuation Act does not apply, the absurd court fees tendered by the plaintiff would amount to the value for the purpose of jurisdiction being also regarded the same notwithstanding the contrary assertion in paragraph 21 of the plaint filed in Court. The third defendant asserts that as such the value of the suit was below the pecuniary floor-limit set for entertaining suits in this Court. Section 8 of the Suits Valuation Act that the third defendant has invoked, provides:
Section 8. Court-fee value and jurisdictional value to be the same in certain suits.- Where in suits other than those referred to in the Court-fees Act, 1870 (7 of 1870), Section 7 paragraphs v, vi and ix, and paragraph x, Clause (d), court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same.
7. The third defendant says that his later application for rejection of the plaint or dismissal of the suit is the more comprehensive. He urges that the plaint is, in any event, liable to be rejected by reason of the express bar found in Section 23 of the 1981 Act:
23. Bar to jurisdiction.- No civil court shall have jurisdiction to decide or deal with any question or to determine any matter which is by or under this Act required to be or has been decided or dealt with or to be determined or has been determined by the Controller or the appellate or other authority specified in the provisions of this Act and no order or judgment passed or proceedings including execution proceedings commenced under the provisions of this Act shall be called in question in any Civil Court.
8. As if the three grounds were not substantial, the third defendant claims that the conduct of the plaintiff would disentitle her from carrying the suit forward. He says that the plaintiff deliberately supplied a wrong address of the third defendant in the plaint. To buttress the point of prejudice, the third defendant shows that the plaint as drafted suppressed both the identity and the address of the third defendant since the third defendant was described as 'P.K. Khan, father's name and address not known to the Plaintiff.' The third defendant surmises that it must have been at the prodding of the department upon noticing that the particulars of the principal defendant had not been furnished, that the plaintiff supplied an address of the defendant in handwriting. The third defendant insists that the address of the third defendant as indicated was known by the plaintiff to be false and a subsequent direction of the Court to correct the address in the cause title to reflect the proper address of the third defendant as supplied by the third defendant has not been carried out. The third defendant suggests that the manner in which he was described in the cause-title, the subsequent failure of the plaintiff to take out or lodge the writ of summons, the snap ad-interim order obtained ex parte and the subsequent service of a copy of the plaint which did not conform to the plaint filed in Court - are all telltale signs of a desperate claimant seeking to obtain an undue advantage in an unmeritorious cause.
9. In furtherance of his challenge to the maintainability of the suit on the ground of the bar under the 1981 Act, the third defendant has introduced facts which are not apparent from the plaint. He, however, suggests that even if such facts are disregarded, an order passed by the Thika Controller under the said Act cannot be questioned in Court though it may now be amenable to correction before the Land Reforms and Tenancy Tribunal constituted in the State. In such context the defendant has relied on a judgment reported at : (2005) 10 SCC 110 (State of W.B. v. Ashis Kumar Roy) where the abridgement of the power of judicial review of the High Court under the Constitution by the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 was upheld.
10. The third defendant, however, insists that the challenges launched on the ground of non-service of the writ of summons and the palpably false or absurd valuation of the suit are insurmountable and no lenience can be shown to a plaintiff whose conduct is otherwise blemished as demonstrated. The third defendant says that the explanation proffered by the plaintiff is not on account of any default on the part of advocate representing her; she has admitted that the fault was her own. He asserts that such a laggard as the present plaintiff should suffer immediate dismissal of the otherwise unworthy cause.
11. On behalf of the plaintiff, paragraph 19 of the affidavit-in-opposition to the third defendant's later application is placed. The plaintiff has averred that she was attacked by paralysis and she became handicapped. Though no particulars in support of such malaise have been furnished nor any documents produced in that regard, the plaintiff has pleaded that she was bed-ridden and 89 years of age as in the year 2008. Paragraph 19 of the affidavit continues,
19. ...she (the plaintiff) could not take any step in the matter neither she could instruct her lawyer to take necessary steps in the matter and for that reason, no step could be taken till 2007.... I say that the instant petition has been filed as a counter blast to the said application filed by the plaintiff under Section 340 of the Code of Criminal Procedure....
12. Elsewhere in the affidavit the plaintiff has denied the factual allegations made in the third defendant's second application. At paragraph 16 she has stated that a copy of the plaint and the petition had been served along with a copy of the order dated January 21, 1999 obtained in GA No. 298 of 1999. At paragraph 7 of the third defendant's reply it has been admitted that a copy of the plaint had been served but the challenger had countered that, 'such service of the plaint along with the application for injunction cannot be treated to be the service of the plaint in the suit.' The plaintiff has implored at paragraph 23 of her latest affidavit that the delay and lapse on her part be condoned and, since the third defendant was both aware of the suit immediately upon its institution and was forwarded a copy of the plaint, the default on the plaintiff's part be regarded as a procedural lapse. The relevant part of paragraph 23 of the plaintiff's affidavit runs thus:
23. ...It is surprising that the defendant No. 3 is contesting the suit right from the beginning and after expiry of 9 years, it is alleged that the plaint should be rejected on the ground of non-furnishing of the address of the defendant No. 3. I say that the address of the defendant No. 3 could not be traced out initially and as such, the address could not be furnished in the plaint, but even after entering the appearance of the defendant No. 3 in an interlocutory application, the defendant should have taken the point of maintainability of the suit. I say that my advocate-on-record could not lodge the Writ of Summons to the Office of the Sheriff as after filing of suit, plaintiff suffered serious ailment and did not meet his Advocate on Record neither could give any instruction. The instant application has been filed for dismissed inter alia on the ground of non service of summons. For the reason as aforesaid no further steps for service of summons could be taken in time. However, it is submitted that since the defendants are contesting the interlocutory applications pending from 1999 and are aware of the proceeding moreover the copy of the plaint was served twice hence the service of writ (of) summons become a formality and thus it is submitted that the service of summons upon the defendants be dispensed with and the defendant may be directed to file their Written Statement failing with the plaintiff will suffer serious prejudice.
13. The plaintiff has relied on a judgment reported at : AIR 1981 All 400 (Sri Nath Agarwal v. Santosh Kumar) for the principle that where the defendant has knowledge of the suit and participates therein he cannot subsequently insist that the non-service of the writ of summons would preclude the suit being proceeded with. The facts that obtained in the Allahabad case were that the defendant had appeared through pleader in response to a notice on an application for attachment before judgment filed in the suit. The Court fixed a date for filing an objection to the application for attachment and also directed the written statement to be filed by a particular date and fixed the final hearing of the suit. Such order was made in presence of advocate representing the defendant. The Allahabad High Court held that since the defendant was aware of the date for filing the written statement and had ultimately filed the written statement without requesting for obtaining any copy of the plaint, he could not be heard to later complain of the non-service of the writ of summons. The passage at paragraph 5 of the report reflects the basis of the opinion:
5. ...The defendant, in fact, never protested against this, nor he ever requested the court for obtaining copy of the plaint. He never complained during the trial of the suit that he was not aware of the date fixed in the suit and therefore he could not deposit the amount on that date. In fact, on several dates he made applications praying for time and ultimately filed the written statement.... In these circumstances, the least that can be said about the defendant is and it is also obvious from his conduct throughout that he had never felt the necessity of service of a summons on him and he never raised any objection about it. Thus even if he had a right to have summons served on him that right stood forfeited due to his waiver, writ so large in the proceedings and also reflected in his actions before the Court. If at any stage he had raised the least doubt about his rights being prejudiced in any manner, he would have protested to the court as he was duly represented by a Counsel. He cannot now be allowed to take shelter behind a stale plea that summons had not been served on him....
14. The plaintiff first attempts to disabuse Court of the impression that the plaintiff, or advocates engaged by her, had attempted to play fast and loose. The plaintiff mourns the unabashed attempt by the third defendant to take advantage of an obvious mistake committed by advocates representing the plaintiff in forwarding an uncorrected copy of the plaint to the third defendant a second time around. It is suggested that the copy of the plaint originally served, and admitted to have been received, was a true copy of the one filed in Court. It is submitted that since the subsequent copy was filed several years down the line, it was unfortunately not detected that an uncorrected copy of the plaint mistakenly kept with the file in advocate's chambers had been forwarded. The plaintiff tenders unconditional apology for such mistake and claims that it would be foolish to serve a flawed copy of the plaint with improper motive as it would be caught out. Counsel submits that the erroneous supply was not the plaintiff's doing and the failure to incorporate the correct address in the application under Section 340 of the Criminal Procedure Code was again a fault that could not be attributed to the then 88-year old plaintiff. It is urged that such points of prejudice be disregarded and the affidavit to the third defendant's later application be treated as an application to Court to both condone the delay in applying for extension for lodging the writ of summons and for enlarging such time. The plaintiff says that the defendant was contemporaneously aware of the institution of the suit and applied for rejection of the plaint albeit with no copy of the plaint appended thereto. The submission is that since it is the admitted position that a copy of the plaint was available with the third defendant within days of the suit being launched, the formality of the writ of summons not being taken out or lodged or served should, in the context, be viewed as the non-compliance of a procedural formality that was dispensable in the circumstances. The plaintiff has relied, in such context, on a Single Bench decision reported at (2000) 3 Cal LT 401 (Magma Leasing Limited v. Sanderson Industries Ltd.).
15. On the point relating to the lack of pecuniary jurisdiction to entertain the suit, the plaintiff says that, at the highest, it was a case of improper court fees having been tendered which cannot result in the automatic dismissal of the suit without affording the plaintiff a chance to put in the adequate fees. The plaintiff undertakes to immediately put in the requisite court fees that ought to have been paid at the time of institution, if she is given an opportunity. The plaintiff refers to the undertaking to such effect given to Court at paragraph 21 of the plaint. The plaintiff says that the valuation of the suit has been correctly made but court fees commensurate with the valuation have not been deposited. In the alternative, the plaintiff contends, that if the valuation is pegged to the quantum of court fees tendered notwithstanding the assertion to the contrary in paragraph 21 of the plaint filed, it would be a case of erroneous valuation which the Court may revise upon a proper inquiry as is envisaged under Section 11 of the Court Fees Act.
16. The plaintiff relies on a judgment reported at : (1987) 4 SCC 69 (Tara Devi v. Sri Thakur Radha Krishna Maharaj) for the proposition that where the plaintiff is free to make his own estimation of the reliefs sought in the plaint, unless the valuation is arbitrary or unreasonable and the plaint has been demonstrably undervalued the Court would let the valuation be. A judgment of this Court reported at : 2008 (1) CHN 1008 (N.D. Tubes Impex Pvt. Ltd. v. Smt. Geeta Gupta) is placed where it was held that:
16. The judgments on which the applicants have relied are all cases of undervaluation where this Court has taken a dim view of the attempt by the plaintiffs in each case to defraud revenue. It is for such purpose that the court inquired in each case and assessed the value of the reliefs to be in excess of what the plaintiffs had ascertained therefor. It is not inconceivable that a plaint may be looked into by court, at the defendant's behest, to discover as to whether the reliefs had been overvalued.... The authorities that the parties have brought speak of the court ordinarily shunning such inquiry unless the valuation is shown to be demonstrably false - of being palpably absurd or manifestly illogical or arithmetically erroneous....
17. The plaintiff relies on the second and third Clauses of Order VII Rule 11 of the Code. Under Clause (b) the plaint becomes liable to be rejected only upon the plaintiff being required to correct the valuation within a particular time and the plaintiff failing to do so. Under Clause (c) the plaint becomes liable to be rejected only upon the plaintiff being required to supply the requisite stamp paper within a particular time and the plaintiff failing to do so. The plaintiff says that matters of court fees and valuation are not subjects that lay litigants can grapple with and if there is any fault on such score it is on account of the shortcoming of lawyer engaged by the litigant. The plaintiff shows that the stamp reporter of this Court did not find fault with the quantum of court fees tendered and, at least prima facie, everything seemed to be in order.
18. On the petition under Section 340 of the Criminal Procedure Code, the plaintiff says that since it has been unequivocally admitted in the third defendant's affidavit that there was a typographical mistake, the plaintiff does not seek to press the charges.
19. The plaintiff says that the order of status quo on the plaintiff's principal interlocutory petition that has been subsisting from January 21, 1999 as regards the mutation in the corporation records should be modified by directing status quo ante to be restored and the mutation effected in favour of the third defendant to be obliterated. To this the third defendant says that the same cannot be done since the mutation is pursuant to an order made by the Thika Controller in properly constituted proceedings before the Controller. The first defendant contends that mutation does not confer any title and under the provisions of the Kolkata Municipal Corporation Act it merely points to the person from whom municipal rates and taxes in respect of the premises would be sought by the Corporation. It is submitted on behalf of the first defendant that the order of status quo as to mutation does not enure to the benefit of the plaintiff since her name, or the name of her predecessor-in-interest, had already been removed from the Corporation records by the time the order of status quo was made.
20. Before any other question is addressed it has first to be assessed whether the plaintiff is deserving of being permitted to carry the suit any further in view of no steps having been taken for issuance of the writ of summons. Chapter VIII of the Rules on the Original Side of this Court mandates that a writ of summons has to be lodged with the Sheriff within 14 days of the filing of the plaint in a suit. In Tarit Appliances it has been held that the omnibus power under Rule 46 of Chapter XXXVIII of the Rules of this Court cannot override the provisions of the Limitation Act. The judgment also holds that an application for condonation of delay may be made though paragraph 18 of the report speaks of an application under Section 5 of the Limitation Act becoming necessary after the lapse of a period of three years and fourteen days from the date of filing of the plaint. The Tarit Appliances judgment did not notice a Division Bench decision reported at 61 CWN 212 (Laxmi Trading v. Shriram Gobindnarain). In Laxmi Trading the default was under Order IX Rule 5 of the Code for failure to take out a fresh summons upon the original returning unserved. Three Division Bench judgments subsequent to Tarit Appliances have drawn sustenance from Order IX Rule 5 of the Code to assess the reasonableness of the time within which a plaintiff has to take steps for effecting service of the writ of summons on a defendant. In all three cases of the unreported judgment in Deepak Prakash v. Jayanta Kumar Bose APOT No. 780 of 2002, APO No. 528 of 2002, GA No. 741 of 2002, GA No. 1003 of 2001, CS No. 217 of 1989 delivered on June 16, 2004, the judgment reported at (2006) 3 Cal LT 230 (Shrikant Mantri v. Radheshyam Chotia) and the unreported judgment in APD No. 669 of 2003, CS No. 577 of 1987 (Hindustan Motors Ltd. v. National Insurance Co. Ltd.) delivered on January 30, 2009, the decisions were rendered in matters where no steps had been taken by the plaintiffs for the issuance or service of the writs of summons on the defendants. On facts, the plaintiffs in the first two matters suffered dismissal of their suits; their reasons for not taking diligent steps not finding favour with the court. In Hindustan Motors Ltd, the plaintiff was found to have shown sufficient cause and the suit was allowed to be proceeded with.
21. Any application for extension of time for issuance or lodgement of summons made after the expiry of the prescribed time therefor has to contain a prayer for condonation of the delay and such prayer has to be allowed before the matter as to extension can be taken up. In a judgment rendered earlier today in GA No. 852 of 2009, CS No. 97 of 2003 (NPR Finance Ltd. v. Deepak Jhunjhunwala) and GA No. 853 of 2009, CS No. 94 of 2003 (Rani Leasings & Finance Ltd. v. Deepak Jhunjhunwala) it has been held, inter alia, as follows:
On the reading of the authorities cited, the following principles emerge:
(i) A valuable right accrues to a defendant upon the plaintiff failing to take steps within reasonable time for effecting service of the writ of summons.
(ii) As to what is reasonable time would be governed by the provisions of Chapter VIII of the Rules on the Original Side of this Court, failing which the provisions of Order IX of the Code and the principles underlying therein would apply.
(iii) An application for enlargement of the time to issue or lodge the writ of summons or to effect service thereof cannot be carried to the Registrar or Master if it is made beyond the time prescribed in Chapter VIII of the Rules on the Original Side of this Court or of the Code, whichever is applicable.
(iv) Section 5 of the Limitation Act would apply where an application is made beyond the prescribed time for the enlargement of the time to effect service of the writ of summons. The sufficiency of the cause shown for the delayed application has to be assessed before the issue of enlargement of time for the service of the writ of summons is taken up. The court, meaning the Judge, has the power to enlarge the time for effecting service of the writ of summons upon sufficient cause being shown. (Pages 20-21 of the judgment)
22. Though in both Tarit Appliances and Shrikant Mantri there were interlocutory applications and yet the delay in the issuance of the writ of summons was not condoned, there is no absolute proposition that the cause shown for the default in a suit where no interlocutory proceedings are had to be treated on a same footing as where interlocutory proceedings had been taken out upon notice to the defendant. In both Tarit Appliances and Shrikant Mantri the Court found that the explanation furnished by the respective plaintiffs was unsatisfactory. In Shrikant Mantri the plaintiff did not apply at all for condonation of the delay or extension of the time for issuance of the writ of summons despite the defendant's demurer application being disposed of. The reason given was that the plaintiff had applied for amendment of the plaint and was waiting for such application to be allowed before seeking issuance of the writ of summons. The Division Bench also held that the pendency of the defendant's application for rejection of the plaint in Shrikant Mantri was no impediment to the plaintiff applying for condonation of delay and extension of time for the issuance of the writ of summons. In short, the plaintiff in that case was found lacking in diligence and the justification was not considered to be good enough.
23. In the instant case the plaintiff says that she is an elderly lady and had suffered an attack of paralysis and had not been able to contact lawyers engaged in the matter. Though the third defendant points out that it was the plaintiff's daughter who, as the plaintiff's constituted attorney, had been conducting the matter, even the daughter is an elderly widow. In the circumstances that have been pleaded for the plaintiff not having taken steps earlier, the elderly plaintiff and her widowed daughter are deserving of a little more latitude than is ordinarily afforded to plaintiffs committing similar default. In Hindustan Motors Ltd, the Division Bench distinguished the old decision of Shaw & Co. on the ground that the defendant in Hindustan Motors Ltd. was aware of the institution of the suit, albeit several years after it had been filed. In the present case the third defendant was aware of the suit shortly after it was launched and was served a copy of the plaint along with the ex parte ad-interim order of January 21, 1999 that was obtained immediately upon the suit being filed. There is no allegation that the copy plaint served in 1999 did not match the plaint filed in Court; the allegation made by the third defendant is that the plaint forwarded several years later was at variance with the one lodged in Court. The quality of the explanation proffered by the plaintiff in the present case and the plight of the plaintiff warrant the condonation of the delay in applying for issuance of fresh summons and the enlargement of time therefor; but the plaintiff has to be put on terms.
24. There is a further reason for treating this plaintiff differently than those in the judgment rendered earlier today. Apart from the fact that the admitted service of a copy of the plaint within a short time of the institution of the suit should weigh with the Court in assessing whether the non-service of the writ of summons should warrant a dismissal of the suit, the third defendant had obtained an order stultifying the trial as the suit could not be transferred to the list of undefended suits. Such order, as the parties submit, continues in GA No. 1989 of 1999. Though a plaintiff has carriage of proceedings and the failure of a defendant to bring to final hearing its application for dismissal of the suit on a point of demurer cannot be made the only basis for condoning the default of the plaintiff as in this case, it would also be a matter that is to be taken into account.
25. It is now only a matter of form as to whether the plaintiff's affidavit can be treated as an application for condonation of the delay since the plaintiff has otherwise orally sought condonation and extension of time for lodging the writ of summons notwithstanding her assertion in the affidavit that the service of writ of summons should be waived since a copy of the plaint had been served on the defendant in 1999. In the light of the view taken that the conduct of the plaintiff here is not so damning so as to result in dismissal of the action, condonation of the delay in applying for enlargement of time for issuance of the writ of summons and enlarging such time would be a necessary corollary; to not immediately make such orders would amount to inviting further applications that would be avoidable.
26. On the question of lack of pecuniary jurisdiction of this Court to receive the action, there appears to be a palpably erroneous assessment of the court fees payable. In view of Section 8 of the Suits Valuation Act, the plaintiff could not have valued the suit one way for the purpose of jurisdiction and another way for the purpose of court fees. There is an undertaking in paragraph 21 of the plaint that in the event the court fees were found to be insufficient, the plaintiff would make good the deficit. There is also a report by the stamp officer that the court fees paid were adequate. A deficiency in court fees tendered would not render the plaint liable for immediate rejection unless the plaintiff has been afforded a chance but fails to take the benefit thereunder.
27. Section 23 of the 1981 Act is, indeed, a bar to a civil court receiving a suit challenging an order of a Thika Controller. There is no specific order of the Thika Controller which has been expressly referred to in the plaint or challenged here. Implicit in the third defendant's assertion that the principal relief can never be granted in the absence of an order of the Thika Controller being set aside is the assertion of a fact which is not found in the plaint. If one were to accept the defendant's version of things at the moment it would amount to disbelieving the averments in the plaint. In an application for rejection of the plaint, the statements in the plaint are ordinarily given credence unless they appear to be palpably absurd. One has to travel beyond the plaint if one were to take cognizance of the fact that the impugned mutation had been effected by the Corporation on the basis of an adjudication by the Thika Controller. It is equally possible that there was no order by the Thika Controller that the Corporation looked into or could look into before it carried out the mutation. Such matter has to be assessed upon evidence being received. Since the plaint version has now to be presumed to be correct, the plaint cannot be rejected at this stage on account of the bar under Section 23 of the 1981 Act and the third defendant is permitted to carry such objection to the trial.
28. In the plaintiff's principal interlocutory application a defence has been set up by the third defendant that the mutation effected by the Corporation was pursuant to an order by the Thika Controller. In any event, the mutation had been carried out prior to the suit being instituted and no strong prima facie case has been made out for the mutation to be obliterated and status quo ante being restored. Notwithstanding the fact that the plaint is not rejected on the ground that the order of the Thika Controller, if any, has to be proved at the trial, prima facie, the defence on such score is good enough for the dismissal of the plaintiff's application for injunction.
29. The plaintiff is permitted to put in the deficit court fees as were payable on the date of institution of the suit on the basis of the disclosed valuation of the suit at over Rs. 10 lakh. Such deficit court fees should be put in within a fortnight from date. In addition, the plaintiff will deposit with the Registrar, Original Side, within a fortnight from date, interest at the rate of 10 per cent per annum on the quantum of deficit calculated from the date of the institution of the suit till the date of deposit. The plaintiff will also put in, within a fortnight from date, a further sum of Rs. 50,000/- with the Registrar, Original Side, to be held to the credit of the suit. In the event the plaintiff fails to put in the court fees or make either deposit as directed within the time permitted, CS 41 of 1999 will stand dismissed without further reference. If the deposits are made, the Registrar will invest the amounts by way of fixed deposits with a nationalised bank within the vicinity of the Court.
30. GA No. 298 of 1999 is dismissed with costs assessed at 100 GM. GA No. 1989 of 1999 and GA No. 1388 of 2008 are disposed of by permitting the third defendant to carry the challenge to the maintainability of the suit on the ground of the bar under Section 23 of the 1981 Act to trial, if the suit progresses to trial. In the event the challenge on such count ultimately succeeds, the third defendant will be entitled to the interest and further amount deposited together with all accruals thereon, less the Registrar's commission. GA No. 1881 of 2007 is dismissed as not pressed without any order as to costs.
31. Urgent certified photocopies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.