1. The Appellant/Plaintiff has filed this instant Second Appeal before this Court as against the Judgment and Decree dated 12/2/2007 in A.S.No.212 of 2006 passed by the Learned First Additional Sub-Judge, Madurai in affirming the Order dated 28/12/2005 of the Learned District Munsif, Melur in rejecting the plaint in O.S.(SR) No.7009 of 2005.
2. The First Appellate Court, viz., the Learned First Additional Sub- Judge, Madurai, in dismissing A.S.No.212 of 2006 filed by the Appellant/Plaintiff on 12/2/2007 in the judgment has among other things observed that even on 16/11/2005, the Appellant/Plaintiff has known what is the Court fee charges to be paid. But has not paid the same and further, has also not filed an application as per Section 149 of the Code of Civil Procedure. Also when the trial Court has returned the plaint and that the defects in full have been rectified and filed the same, it cannot be said that the Judgment and Decree of the trial Court are not proper. Moreover, the rejection of plaint made by the trial Court as per the Judgment of the Honourable High Court is a legal one and no interference is called for and resultantly, dismissed the Appeal with costs.
3. Earlier, the Learned District Munsif, Melur in O.S.(SR) No.7009 of 2005 has passed an order on 28/12/2005 in rejecting the plaint filed by the Appellant/Plaintiff by inter alia observing that the Appellant/Plaintiff has not projected an application as per Section 149 of the Code of Civil Procedure praying permission of the Court to pay the deficit Court fee and in the absence of said application being filed the plaint filed by paying the appropriate Court fee with a delay is not proper and consequently, rejected the plaint.
4. When the trial Court has rejected the plaint in O.S.(SR) No.7009 of 2005 dated 28/12/2005, the Appellant/Plaintiff filed A.S.No.212 of 2006 before the First Appellate Court viz., the Learned First Additional Sub-Judge, Madurai.
5. The First Appellate Court viz., the First Additional Sub-Judge, Madurai, after contest, has dismissed A.S.No.212 of 2006 on 12/2/2007 by observing that 'there is no need to interfere with the order of rejection of the plaint passed by the trial Court' and resultantly, dismissed the Appeal with costs.
6. Being dissatisfied with the Judgment and Decree dated 12/2/2007 in A.s.No.212 of 2006, the Appellant/Plaintiff has projected the Second Appeal before this Court.
7. At the time of admission of the Second Appeal, this Court has framed the following substantial questions of law for consideration:-
“(i). Whether the Courts below are correct in law rejecting the plaint without adverting to the due compliance of the original return within the stipulated time and without adverting to Order 7 Rule 11 (c) of Civil Procedure Code?
(ii). Whether the Court below are right in rejecting to the plaint by stating that no application under section 149 of Civil Procedure Code seeking for extension of time for remitting the deficit Court fee without adverting to the orders passed o 24/11/2005?”
8. THE CONTENTIONS, DISCUSSIONS AND FINDING ON SUBSTANTIAL QUESTIONS OF LAW (i) and (ii):- The Learned counsel for the Appellant/Plaintiff submits that the trial Court as well as the First Appellate Court have committed an error in rejecting the plaint without adverting to the fact that the plaint has been returned on the specific directions of the Court, which has directed the Appellant/Plaintiff to remit the Court fee and the same has been complied with.
9. The Learned counsel for the Appellant/Plaintiff urges before this Court that when the Appellant/Plaintiff has paid the deficit Court fee and has complied with the directions of the trial Court in time and represented the plaint, then, it is not open to the trial Court to reject the plaint by observing that application/petition under Section 149 of the Code of Civil Procedure has not been filed and that too when the trial Court has exercised its discretionary power as per Section 149 of the Code of Civil Procedure.
10. According to the Learned counsel for the Appellant/Plaintiff, both the Courts below have ignored an important fact that the trial Court has passed an order on 24/11/2005 returning the papers with a direction to pay the deficit Court fee by granting a month's time and therefore, it is not open to the trial Court to ignore the said order at a later point of time.
11. Lastly, it is the submission of the Learned counsel for the Appellant/Plaintiff that the ingredients of Order VII Rule 11 (c) of the Code of Civil Procedure have not been adverted to by the trial Court as well as the First Appellate Court, which has resulted in miscarriage of Justice.
12. The Learned counsel for the Appellant/Plaintiff submits that the Appellant/Plaintiff, initially paid a Court fee of Rs.200/-. At the time of filing of the plaint, though a Court fee to be paid in full for a suit claim is Rs.7,142/- and that when the plaint has been returned by the office of the trial Court for payment of deficit Court fee, one month time has been granted to pay a sum of Rs.6,942/-. In fact, an additional Court fee of Rs.6,942/- has been paid on 22/12/2005.
13. It is the contention of the Learned counsel for the Appellant/Plaintiff that when the Appellant/Plaintiff has made the deficit Court fee of Rs.6,942/- on 22/12/2005 and when the return made by the Office for payment of deficit Court fee and granting one month's time from 24/11/2005 has been paid on 22/12/2005 and also bearing in mind of an important fact that the Appellant/Plaintiff initially has paid a Court fee of Rs.200/-, then the Appellant/Plaintiff has remitted the entire Court fee of Rs.7,142/- and when the deficit Court fee of Rs.6,942/- has been paid on 22/12/2005, then it revert back to the original date of filing of the plaint, as if, the said Court fee has been paid in the first instance.
14. To lend support to his contention that in law, deficiency of Court fee can be paid for making good even after the period of limitation for filing of the suit or appeal has expired, the Learned counsel for the Appellant/Plaintiff relies on the decision of this Court in A.GURUNATHAN @ SIVAJI Vs. J. MUTHULAKSHMI AND OTHERS reported in 2009 (3) MLJ page 760, wherein it has laid down as follows:-
“The words “at any stage” in Section 149 of the Code of Civil Procedure specify that deficiency can be made good even after the period of limitation for filing of the suit or appeal has expired. The discretion can be exercised even in the case of a plaint without any Court fee.
An application to receive the deficit Court Fee is not a mandatory one and the same is only optional and in the absence of an application, the act of Court in accepting or receiving the deficit Court Fee cannot be found fault with and the exercise of judicial discretion by the trial Court in tis regard in favour of the plaintiffs in order to do justice is a prudent and equitable one, since the said discretion in its breath is co-extensive with necessity and the resultant position is the plaint stands good from the original date of filing and the same is not time barred. However, the duty of Court is to see that its act injures no party.”
15. Initially, before the trial Court, the Appellant/Plaintiff, filed the plaint on 16/11/2005. It is represented on behalf of the Appellant/Plaintiff that at the time of filing of the suit, the Appellant/Plaintiff has paid only a Court fee of Rs.200/- instead of the full Court fee of Rs.7,142/- for the suit claim of Rs.95,212.50 etc. Subsequently, the plaint has been returned by the trial Court for payment of deficit Court fee of Rs.6,942/- on 24/11/2005, granting one month's time to pay the same. On 22/12/2005, the full Court fee has been paid as per the endorsement made by the Learned counsel appearing for the Appellant/Plaintiff before the trial Court.
16. It transpires from record that the trial Court has passed a suo motu order on 28/12/2005, rejecting the plaint filed by the Appellant/Plaintiff on the ground that the plaint has been filed on 16/11/2005 and the same has been returned for payment of deficit Court fee. Subsequently, the full Court fee has been paid on 22/12/2005 and the plaint has been represented. Further, if calculated from the date of pronote 17/11/2002 and the filing of the plaint on 22/12/2005, after three years, the plaint has been filed. The appropriate Court fee in full has not been paid at the time of initial presentation of plaint before the trial Court. For the delay in payment of Court fee, no application has been filed under Section 149 of the Code of Civil Procedure to seek necessary permission in paying the deficit Court fee. In the absence of any application being filed thereto, the plaint is not liable to be taken on file and accordingly, the same has been rejected.
17. On going through the order of the trial Court, in rejecting the plaint, it is evident that a reliance has been placed on the decision S.V.ARJUNARAJA Vs. P. VASANTHA reported in 2005 (5) CTC - 401, whereby and whereunder, it is observed and held that
“In a suit based on pronote filed in time, the appropriate Court fee has not been filed and the deficit Court fee has been made up, after the period of limitation for the suit expired and no order for payment of such deficit Court fees made by the Court, no application by plaintiff also has been filed, the plaint is liable to be rejected.”
18. At this juncture, this Court pertinently points out that Order VII Rule 11 of the Code of Civil Procedure is one of procedure. A Court of law is to give a meaningful reading to the plaint, where a plaint is admitted as duly stamped, the suit cannot be dismissed under Order VII Rule 11 at the arguments stage on the basis that the Court fee paid is insufficient, in the considered opinion of this Court. Indeed, a Court of Law as per Section 149 of the Code of Civil Procedure has power at any stage to permit the plaintiff to make good the deficiency of Court fees and further provides in effect that when the deficiency has been made up, the plaint is as valid as if it has been appropriately stamped when presented. As a matter of fact, Section 149 of the Code of Civil Procedure, grants power to the Court to allow any individual by whom the Court fees is payable either to pay the whole or part, as the case may be, of such Court fees. On such payment being made, the document in respect of which such fee is payable will have the same force as such fee has been paid at the initial instance. The discretion as per Section 149 of the Code of Civil Procedure, can be exercised even in the case of plaint without any Court fees. The proper provision under which the time may be granted or extended for payment of deficit Court fee is Section 149 of the Code of Civil Procedure and not under Order VII Rule 11 of the Code of Civil Procedure, which only speaks of the circumstances in which a plaint shall be rejected. To put it differently, Order VII Rule 11 of the Code of Civil Procedure is a disabling provision and not an enabling one, as per decision VO DEVASSY V. PERIYAR CREDITS reported in AIR 1994 KERALA - 405.
19. It cannot be gain said that the ingredients of Order VII Rule 11 of the Code of Civil Procedure can be applied at the initial stage in a given case and not after the suit is tried, as per decision PARAVATHAMMA Vs. K.R.LOKNATH reported in AIR 1991 KARNATAKA page 283.
20. Equally, an order rejecting the plaint under Order VII Rule 11 (c) of the Code of Civil Procedure and to be made only after the Plaintiff is provided with an opportunity to correct the failure to pay the deficit Court fee and he fails to do so. In this connection, this Court worth recalls the decision of UNION OF INDIA, DELHI Vs. ROSHAN LAL AND ANOTHER reported in AIR 1968 DELHI - 165, at page 166, wherein it is held as follows:-
“It is true that a document not bearing proper court-fee cannot be considered to be validly presented to the Court, but the principle underlying Section 149 of the Code suggests that the question of Court-fee is a question between the Revenue and the litigant and, therefore, the Court has a discretion, albeit judicial discretion, to allow a litigant to pay the court-fee prescribed for any document by the law, which he should have paid earlier and the subsequent payment is to have the same force and effect as if such fee had been paid in the first instance. The Court has really to keep all the relevant facts in view and then come to decision whether or not to exercise judicial discretion in favour of the litigant concerned, bearing in mind the rule laid down in AIR 1938 Lah 361 (FB); AIR 1961 SC 882.
21. Further, in MOSST, SAIMUNISSA Vs. Sk.MOHIUDDIN AND OTHERS reported in AIR 1991 PATNA - 183, wherein it is held that
“The deficiency of Court fee paid in High Court of plaint and on memo of appeal, no exception thereafter, can be taken in regard to the maintainability of the suit.”
22. Added further, in BAIJNATH PRASAD SINGH AND OTHERS Vs. UMESHWAR SINGH AND OTHERS reported in AIR 1937 PATNA - 550, it is held hereunder:-
“Order VII Rule 11 of the Code of Civil Procedure makes it compulsory for the Courts, before rejecting the plaint, to give some time to the plaintiff to make up the deficiency, however short that time may be, and the Court cannot straightway reject the plaint without giving such time.
Where a suit is filed within the limitation prescribed by law but on an insufficiently stamped paper and the plaintiff makes up the deficiency within the time allowed by the Court but after the expiry of the period of limitation for such suit, the fact that the plaint was not properly stamped when it was filed does not in the least militate against its efficacy and the plaint does not become as though it had not been lodged at all. The plaint remains in time even then.”
23. Apart from the above decisions, this Court in furtherance of substantial cause of justice, cites the following decisions:-
(a). In MANNAN LAL Vs. MST. CHHOTKA BIBI (DEAD) BY HER LEGAL REPRESENTATIVE AND OTHERS reported in AIR 1971 SUPREME COURT - 1374 at page 1375, it is held thus:-
“Section 149 of the Code of Civil Procedure 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 Civil Procedure Code by reading Section 149 of the Code of Civil Procedure 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, as Section 149 expressly provides that the document is to have validity with retrospective effect.”
(b). In RAM KRISHNA DHANDHANIA AND ANOTHER Vs. CIVIL JUDGE (Sr. DIVISION), KANPUR NAGAR AND OTHERS reported in AIR 2005 ALLAHABAD - 291, at page 293 and 294, in paragraph Nos.16 to 19, it is observed as follows:-
“16. Deficiency of Court-fees is an important issue and has to be decided also giving combined effect to the provisions of Section 149 and Order VII, Rule 11 of the Code of Civil Procedure and both the said provisions provide that if there is a deficiency of court-fee, the Court must give time to make the deficiency good and if during that period, the amount of court-fee is paid, the plaint takes its effect from the date of its original presentation. {Vide Brijbhukhan V. Tota Ram, AIR 1929 ALL 75}. In this respect, the decision has to be based on judicial discretion and cannot be made arbitrarily, as held by the Full Bench of this Court in Wajid Ali V. Isar Banu urf Isar Fatma, AIR 1951 ALL - 64. Section 149 of the Code of Civil Procedure provides that where the whole or any part of the court-fees 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 fees is payable to pay the whole or part, as the case may bem of such court-fees and upon such payment, the document in respect of which fee is payable shall have the same force and effect as if such fees had been paid in the first instance.
17. Validity of an order is to be tested on the touch-stone of doctrine of prejudice. (Vide Jankinath Sarangi V. State of Orissa, (1969) 3 SCC - 392; K.L.Tripathi V. State Bank of India, AIR 1984 SC - 273; Sunil Kumar Banerjee V. State of West Bengal, AIR 1980 SC 1180;Maj.G.S.Sodhi V. Union of India, AIR 1991 SC - 1617; Managing Director, ECIL, Hyderabad V. B.Karunakar, AIR 1994 SC 1074; Krishan Lal V. State of J & K (1994) 4 SCC 422; State Bank of Patiala v. S.K.Sharma, AIR 1996 SC 1669; S.K.Singh V. Central Bank of India, (1996) 6 SCC 415; State of U.P. V. Harendra Arora, AIR 2001 SC 2319; Oriental Insurance Co. Ltd., V. S.Balakrishnan, AIR 2001 SC 2400; and Debotosh Pal Choudhury V. Punjab National Bank(2002) 8 SCC 68:(AIR 2002 SC - 3276).
18. Thus, in view of the above, the legal position can be summarized that the defendant has a right to raise all objections on the valuation and deficiency of the court-fees. The matter is to be adjudicated upon and decided by the Court under Section 12 of the Act 1870 and the decision so taken by the trial Court shall be final.
The defendant cannot raise the grievance against the sai decision unless the valuation suggested by him affects the jurisdiction of the Court. However, the appellate or revisional Court always can test the issue suo motu and make the deficiency good as the purpose of the Act is not only fixing the peecuniary jurisdiction of the Court but also creating revenue for the State.
19. In view of the above, we dispose of this writ petition requesting the learned Civil Judge (Senior Division), Kanpur Nagar to decide the said application for recall filed by the defendant-respondents finally in the light of the law laid down above as early as possible and to expedite the trial of the Suit giving strict adherence to the provisions of Order XVII, Rule 1 of the Code of Civil Procedure and conclude the same as early as possible.”
24. This Court aptly points out the decision GIRIDHARI AUTO FINANCE PRIVATE LIMITED VS. GUDLA HARI BABU AND OTHERS, reported in 2003 (6) ALD - at page 682, wherein it is held that 'the question of limitation does not arise in respect of the payment of deficit Court fee'.
25. Section 149 of the Code of Civil Procedure enables a defective document to be retrospectively validated if the insufficiency of the stamp is subsequently made up with the leave of Court, as per decision JAGTU Vs. BADRI reported in AIR 1978 JAMMU & KASHMIR - 50. However, the power to make good the deficiency of court fees is subject to the discretion of the Court and cannot be claimed as of right by a party, as per decision VALLI Vs. MAHMAD reported in (1914) 16 BOMBAY LR - 763 at 766. Even a reading of Section 107 (2) of the Code of Civil Procedure relating to the power of the Court and Section 149 of the Code of Civil Procedure can power to make up deficiency of Court fees to point out that an opportunity must be given by the Court to party to make good the deficit Court fees within the time to be specified and if there was a failure to comply with the direction of the Court, the memorandum of appeal should have been dismissed, as per decision Mohd. AHIBULLA Vs. SETH CHAMAN LAL reported in (1991) 1 SCC - 529.
26. Keeping in view of the right of the Litigant/Decree Holder and public interest in a given case, a discretionary power as per section 149 of the Code of Civil Procedure has to be exercised by a Court of Law. An extension/exemption of Court fee is purely a discretionary power of a Court of Law. However, it must be based on bonafide ground, in the considered opinion of this Court. The discretion ordinarily is to be exercised in favour of a litigant barring cases of mala fides, and contumacy.
27. In KATHYEE COTTON MILLS LTD., Vs.PADMANABHA PILLAI reported in AIR 1958 KERALA - 88, it is among other things held that
“There is no conflict or exclusiveness between Section 148 and 149 of the Code of Civil Procedure and that a partis not, as of right, is entitled to under Section 148 to get an of an enlargement of a period fixed or granted by the Court and that is a matter entirely within the discretion of the Court though no doubt some discretion should be exercised judicially and no capriciously or arbitrally. According to the learned counsel for the respondents in Section 149 of the Code of Civil Procedure, the expression at any stage is used and that the terms of 'time' is used in Section 148 of the Code of Civil Procedure. Further, it is the contention of the learned counsel for the respondents that even a time fixed under Clause (c) of Rule 11 of Order 7 will be a period fixed under Section 148 of the Code of Civil Procedure and as such the Court will have power to extent, if it otherwise deems fit to do so.”
28. In JAGAT RAM Vs. MISAR KHARAITI RAM reported in AIR 1938 LAHORE 361, wherein it is laid down as hereunder:-
“The discretion conferred on the Court by Section 149 is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act.”
29. In NALLURI SINGH VS. BANDLAPATI KISHORE BABU reported in AIR 2006 (NOC) 1183 (A.P), wherein it is held that
“The order of the trial Court in allowing the application seeking condonation of delay in representing the plaint should be deemed to have condoned delay in payment of deficit Court fee as well.”
30. In HUKMA Vs. MANGA reported in 2003 (P & H) 287, it is observed that
“Section 148 of the Code of Civil Procedure in terms allows extension of time even though the original period has expired and Section 149 of the Code of Civil Procedure is equally liberal.”
The payment of deficit Court fee relates back to the date of filing of the plaint, as opined by this Court.
31. Significantly, Section 149 of the Code of Civil Procedure is the exception to the Rule, that the suit ought to be filed with requisite Court fee. The discretion is to be considered, not under Limitation Act, as per General Clauses Act.
32. It is to be noted that an order which amounts to a Decree within Section 2 (2) of the Code of Civil Procedure, does not fall under Section 104 of the Code of Civil Procedure and only applicable Section is 96 of the Code of Civil Procedure, as per decision SHIV SHAKTI COOP. HOUSING SOCIETY, NAGPUR Vs. SWARAJ DEVELOPERS AND OTHERS reported in (2003) 6 SUPREME COURT CASES - 659 at 673.
33. An order rejecting a plaint for non-payment Court fee is a Decree as per Section 2 (2) of the Code of Civil Procedure. The remedy is appeal and not restoration under Order 9 Rule 4 of the Code of Civil Procedure, as per decision M/s.RAZACK TRADING COMPANY, ARIYALOOR Vs. M/S.J.K.INDUSTRIES LTD., NEW DELHI reported in AIR 2003 KERALA - 171.
34. Also, an order of rejection of plaint is Decree and therefore, the Appeal and not Revision lies, as per decision reported in KONA RAMU Vs. THE PAYAKARAOPETA PRIMARY AGRICULTURAL CO-OPERATIVE CREDIT SOCIETY LTD., PAYAKARAOPET, VISAKHAPATNAM DISTRICT AND OTHERS reported in 1997 (4) ALT page
45.
35. As far as the present case is concerned, it is not in dispute that the Appellant/Plaintiff at the time of filing of the plaint on 16/11/2005 has only paid a Court fee of Rs.200/- for the requisite Court fee of Rs.7,142/- to be paid in full. The trial Court has returned the plaint on 24/11/2005 for payment of deficit Court fee of Rs.6,942/-. The trial Court has granted one month's time to the Appellant/Plaintiff to pay the deficit Court fee of Rs.6,942/-. The Learned counsel for the Appellant/Plaintiff before the trial Court has made an endorsement in the plaint while representing the same on 22/12/2005 that the entire Court fee has been paid.
36. This Court has perused the original plaint in un-numbered original suit in O.S.(S.R).No.7009/2005 and on top of the plaint, the Chief Ministerial Officer of the trial Court has made an endorsement that the additional Court fee of Rs.6,942/- has been paid and in token thereof, he has affixed his short initials in red ink. From this, it is latently and patently crystal clear that on 22/12/2005, the Appellant/Plaintiff in the plaint has paid the full Court fee (including the one of Rs.200/- initially paid at the time of filing of the plaint on 16/11/2005). As a matter of fact, the Appellant/Plaintiff at the time of representation of the plaint, within the time of one month granted by the trial Court from 24/11/2005, on 22/12/2005, has paid the deficit Court fee of Rs.6,742/-.
37. When the Appellant/Plaintiff has paid the full Court Fee as on 22/12/2005, the trial Court passing a suo motu order on 28/12/2005, by taking up the unnumbered plaint in O.S.(SR) No.7009 of 2005 and rejecting the same on the grounds that when the calculation is made from the date of pronote 17/11/2002, till the date of filing of the plaint on 22/12/2005, three years have lapsed, and further, the full Court fee has not been paid at the time of filing of the plaint and also that no application as per Section 149 of the Code of Civil Procedure praying to condone the delay of payment of deficit Court fee, the plaint is not fit to be taken on file and resultantly, dismissing the plaint are not legally sound and proper in the eye of law. The said order is a Decree, as per Section 2 (2) of the Code of Civil Procedure, in the considered opinion of this Court. As such the Appellant/Plaintiff as against the rejection of plaint, passed by the trial Court has preferred A.S.No.212 of 2006 before the First Appellate Court and the First Appellate Court viz., the First Additional Sub- Judge, Madurai on 12/2/2007 in the Judgment has resultantly dismissed that even on 16/11/2005, the Appellant/Plaintiff has known what is the Court fee to be paid and he has not paid the same and further, has also not filed any application as per Section 149 of the Code of Civil Procedure etc., and when the Appellant/Plaintiff has represented the plaint rectifying the defects, it cannot be said that the trial Court's Judgment and Decree are not proper in law and consequently, dismissed the Appeal, which in the considered opinion of this Court is not in accordance with the well laid down principles of law more particularly when Section 149 of the Code of Civil Procedure which expressly states that the payment of deficit Court fee paid subsequently relates back to the retrospective effect in so far as its validity is concerned.
38. In the instant case, as per Section 149 of the Code of Civil Procedure, no application for payment of deficit Court fee is required because of the simple fact that at the time of scrutiny of the plaint, the office of the trial Court with the endorsement of the learned District Munsif has found that the Appellant/Plaintiff has only paid a Court fee of Rs.200/- for the requisite Court fee of Rs.7,142/- to be paid. Further, the trial Court has granted a month's time to pay the deficit Court fee while returning the plaint on 24/11/2005. As a matter of fact, the Appellant/Plaintiff has paid the additional Court fee of Rs.6,942/- as per endorsement made by the Chief Ministerial Officer of the trial Court on 22/12/2005. Therefore, no application as per Section
149 of the Code of Civil Procedure is required for extension of time for remitting the deficit Court fee in the present case. Accordingly, the substantial questions of law Nos.1 and 2 are answered in favour of the Appellant/Plaintiff.
39. Viewed in that perspective, the Judgment and Decree of the First Appellate Court are not correct and accordingly, this Court interferes with the same and to promote substantial cause of justice, set aside both the order of the trial Court in O.S.(SR) No.7009 of 2005 dated 28/12/2005 and the Judgment and Decree of the First Appellate Court in A.S.No.12 of 2006 dated 12/2/2007 and allows the Second Appeal in furtherance of substantial cause of justice. No costs. The Learned District Munsif, Melur is directed to take unnumbered O.S. (SR) No.7009 of 2005 to file and assign suit number and to proceed further in the manner known to law.