JUDGMENT
Manmohan Sarin, J.
1. By this judgment, IA. No. 729/2003, under Section 151 for condoning the delay in refiling the suit after removal of objections and IA. No. 1925/2003, under Section 149 CPC for extension of time in payment of the deficit court fee are being decided.
2. The facts giving rise to the above applications may be briefly noted:-
(i) Plaintiff on 10.10.2002, filed this suit for recovery of Rs. 75 lacs together with pendente lite and future interest @ 18 per cent per annum and costs against the defendant. It was filed with an urgent application, affixing court fee of Rs. 2.75 paise and court fee of Rs. 2.75 paise, being affixed on the memo of parties. On 19.10.2002, the registry returned the suit with the following objection, ” that ad valorem court fee should be paid, might be returned to be refiled within one week.” Suit was one for recovery simplicitor and the value of the suit for purposes of court fee and jurisdiction had been given in the plaint at Rs. 75 lacs by the plaintiff.
(ii) Plaintiff filed IA. 729/2003 on 7.1.2003 for condensation of delay, stating that counsel requested the plaintiff to send the money for payment of deficit court fees. The same could not be arranged. It could only be arranged and made available on 21.12.2002. It is the plaintiff’s case that court fee was applied for on 22.12.2002 and made available on 31.12.2002 and suit was immediately refiled on reopening on 2.1.2003, as the Courts were closed during winter vacations from 22.12.2002 till 1.1.2003.
(iii) Plaintiff averred in the application that the suit was originally filed well within limitation and was still within limitation prescribed for a recovery suit. It is claimed that no prejudice could be caused to the defendant by condoning the delay in refiling the suit. Application was duly supported with an affidavit of plaintiff. Reply to the said application has been filed by the defendant on 19.2.2003. It is pleaded in the reply that suit, as filed by the plaintiff on 10.10.2002 was no suit in the eyes of law as court fee had not been affixed. The registry in terms of Rule 2 of Chapter IV of the Delhi High Court (Original Side) Rules, 1967 finding the suit, as instituted, defective had returned the same giving one week’s time to be refiled. The same has been refiled only after a period of 74 days on 2.1.2003 without any explanation forthcoming for the delay in refiling the suit or an application for condensation. It was pursuant to objection by registry again that the suit was refiled on 7.1.2003, along with an application for condensation of delay. It is claimed that 7.1.2003 is the date when the suit has been properly presented for registration. Defendant claims that even if the cause of action for the suit, as per the plaintiff was said to have arisen on 7.12.1999, the suit as instituted on 7.1.2003 was barred by limitation.
(iv) Plaintiff in IA. 1925/2003, under Section 149 CPC prays for extension of time to pay the court fee. As regards the delay in filing the court fee, it is claimed that the court fee required was a huge amount of Rs. 75,600/- and the money for the same could not be arranged by the plaintiff. Plaintiff purchased the court fee as soon as the money for the same was arranged on 21.12.2002. It is urged by the plaintiff that there was part payment affected by the defendant on 7.12.1999 and the suit could have been, therefore, instituted on or before 6.12.2002. It is urged that had the defendant filed the suit on 6.12.2002, he would have one month’s time to rectify the defects and comply with objections and the court fee could have been thus filed before 6.1.2003.
(v) Reference is also made to the suit filed by the present defendant, wherein the plaintiff was entitled to file a counter claim. However, the said suit was dismissed in December, 2002. It is stated that the plaintiff could not have instituted the suit before December, 2002 and hence the cause of action arose in December, 2002, the date on which the defendant’s suit was dismissed and the present suit would thus be within limitation. It is averred in the application that the suit had been instituted in time and the defendant put on notice. Plaintiff had acted bona fide, but due to non-arrangement of money, required for court fee, it could not be refiled. The prayer is made to extend the time for filing of the court fee in the interest of justice, as prejudice and irreparable loss would be caused to the plaintiff, who would be left remediless. It is stated that no prejudice would be caused to the defendant, if extension is granted, who could defend the suit on merits. No reply to IA. No. 1925/2003 had been filed by the defendant. However, counsel argued the same on merits as the facts are already set out in reply to IA. No. 729/2003.
3. Having noticed the admitted facts as also the pleas urged, let me notice the legal position, as it emerges from the authorities cited by both the counsel. Before adverting to the legal position on facts, it may be noticed that the plaintiff was the sole proprietor of a construction firm and defendant is a society. Disputes between the parties relate to a contract executed for construction of staff housing/teaching block. It is the plaintiff’s case that the architect, under whose supervision the work was carried, was removed and the defendant appointed a new architect. A sum of Rs. 25 lacs is stated to have been paid to the plaintiff. An application bearing No. 1096/2000 in the suit instituted by the defendant for recording of compromise was moved. This application, plaintiff claims, was opposed and the suit was dismissed as withdrawn. It was the defendant’s case that the sum of Rs. 25 lacs was paid in full satisfaction and there was accord and satisfaction, while the plaintiff claims that there was no compromise reached and it was only a part payment on 7.12.1999.
4. Learned counsel for the plaintiff, Mr. J.P. Gupta, submitted that the plaintiff had acted bona fide by filing the suit well in time. It was unfortunate that the plaintiff could not arrange for the court fee, which was a substantial amount and as soon as the same was arranged, court fee was purchased and filed. He submits that the plaintiff acted with diligence and had instituted the suit on 10.10.2002, even though the same could be filed later i.e. by 6.12.2002. It shows that the plaintiff acted bona fide and was earnest about prosecuting his remedy. This was a case, where the delay deserves to be condoned in refiling the suit as also for allowing application under Section 149 CPC, as the court fee has eventually been paid.
5. Learned counsel for the plaintiff relied on the following authorities in support of the above:-
(i) Mahanth Ram Das Vs. Ganga Das reported at 1961 Supreme Court Reports 763;
(ii) Custodian of Evacuee property, New Delhi Vs. Rameshwar Dayal and others,
(iii) Indian Statistical Institute Vs. M/s. Associated Builder and others reported at AIR 1978 Suprem court 335;
(iv) Parma Nand Vs. Kamla Sethi reported at 1975 Rajdhani Law Reporter 35 and
(v)V.O.Devassy Vs. Periyar credits and another .
6. In Mahanth Ram Das Vs. Ganga Das (supra), a suit for declaration had been dismissed by the trial court on 31.5.1947. On 26.11.1951, the appeal was decided in favor of the appellant on the condition that he paid the court fee on the amended relief of possession of the properties involved being sought in the suit. The Court of first instance was also required to determine the value of the properties and fix the amount of court fee to be paid. A peremptory direction was issued by the High Court that after determination of value of property for the purposes of court fee, as notified by the Deputy Registrar of the High Court to the appellant, the appellant would pay the court fee within three months, failing which the appeal would stand dismissed and if the court fee was paid within time the appeal would stand allowed with costs. The registry intimated the appellant to pay the deficit court fee of Rs. 1987/- on 8.4.1984. Time was to expire on 8.7.1984. The appellant was unable to find the money. Appellant filed an application, requesting that he be permitted to pay immediately Rs.1400/- and balance within a month. Application for extension was dismissed holding that on account of failure to pay the court fee within three months, the appeal already stood dismissed. The Supreme Court observed, “as the procedural orders though peremptory (conditional decrees a part) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay, but they do not completely estop a court from taking note of events and circumstances which happen within the time fixed …………….” The Supreme Court further observed that Section 148 of the Code of Civil Procedure in terms, allows extension of time, even if the original period fixed expired and Section 149 is equally liberal; the High Court had ample power to apply those sections and to exercise its inherent powers under Section 151 in order to do justice to a litigant for whom it had expressed considerable sympathy.” The dismissal of the suit was set aside and further time of two months’ was granted for payment of court fee.
7. In Custodian of Evacuee Property, New Delhi Vs. Rameshwar Dayal and others (supra), the execution appeal was dismissed, holding it to be barred by limitation as the order appealed against against did not bear proper court fee. A revision petition had been filed instead of an appeal. The learned Single Judge referred the question to the Full Bench. The Full Bench ruled that revision was not maintainable and appeal had to be preferred. The revision petition pending before the Single Judge was not converted to an appeal as he felt that the appeal was maintainable before the lower appellate court and not in the High Court. It was contended that in view of the appealed oder not being affixed with the proper court fee a valuable right had accrued in favor of the opposite successful party as the appeal preferred without requisite court fee was no appeal in the eyes of law and had, therefore, become barred by limitation. The appellant made an application under Section 149 CPC to make good the deficiency in court fee. The ADJ took the view that without prayer to extend limitation, he could not permit the deficiency to be made good. He also did not consider the plea that court fee as was originally required to be paid in 1947 had been affixed. Learned Chief Justice I.D. Dua allowed the appeal holding, “The discretion conferred on the court by Section 149 is normally expected to be exercised in favor of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides has in this connection to be considered from the point of view of its definition as contained in the General Clauses Act and not as contained in the Limitation Act. A thing should be presumed to be done bona fide if it is done honestly, whether it is done negligently or not, for the purposes of judging whether the discretion under Section 149 should or should not be exercised in favor of the litigant. When the deficit court fee stamp to be affixed on the copy of the order appealed from was actually attached with the application under Section 149, it would be a more appropriate and more satisfactory exercise of judicial discretion to allow the deficiency to be made good so that the controversy was heard on the merits rather than to throw out the appeal on this ground.”
8. In Indian Statistical Institute Vs. M/s. Associated Builders and others (supra), objections had been filed within limitation. Necessary stamps were not affixed. The date of verification had also not been given. The Deputy Registrar was requested for grant of more time to file objections. The plea for condensation of delay and extension of time for filing of objections for setting aside the award was urged. It was pleaded that the previous advocate was exerting illegal and unethical pressure by demanding a sum of Rs.15,000/- unjustifiably. The correspondence with previous advocate was also filed. The learned Single Judge rejected the plea holding that the conduct on the part of the counsel, could not be held as sufficient cause for condensation of delay as there was negligence of the party. The Court took the view that the material for drafting of objections was already filed either in the Court record or available with the appellant. Hence as objections had not been refiled within reasonable time, the same were rejected. The Supreme Court held that there was sufficient ground for condoning the delay in filing the objections. It observed that “under Section 149 of the Code of Civil Procedure the Court has ample power to allow a person by whom the court fee is payable to pay deficit court fee at any stage. The defect of not affixing the date of verification was not a material one to be taken note of. The Court also held that in such cases Section 5 of the Limitation Act had no application. There was no delay in presenting the objections in the first instance on time. The delay, if any, was in complying with the directions of the Registrar to rectify the defect and refiling the objections. The delay, as pointed out earlier, was held not to be due to any want of care on the part of the appellant but due to circumstances, beyond his control.”
9. Reference may also be usefully made to Parma Nand Vs. Kamla Sethi (Supra) . This was a case, where the landlady sought eviction of tenants on various grounds but not on default of payment. The plea of fixation of standard rent raised by the tenant was, therefore, an independent application, requiring court fee of Rs.13/-. The appellant did not affix any court fee on this application. The appellant was asked to pay court fee within 10 days. He paid it on 14th day, seeking condensation of delay by pleading that his clerk was under the impression that court fee was required to be paid within 15 days. The Rent Controller dismissed the application holding that he had failed to act with due care and attention as sufficient cause was not made out. The Rent Control Tribunal confirmed the order. The High Court in second appeal observed as under and outlined the approach to be adopted:-
“7. It is well settled that the matter of court fees, whether of its non-payment, deficit payment or delay in payment, is not a matter between the parties but is a matter between the revenue on the one hand and the party, which had made default in the payment of court fees, on the other. It is equally well settled that the provisions of Sections 148 and 149 are much wider in their ambit and have to be liberally construed and any default or delay in the payment of court fee should ordinarily be condoned. Reference may be made in this connection to the observations of the Supreme Court in the case of Mahanth Ram Dass Vs. Ganga Das- and of this Court in the case of Custodian of Evacuee Property, New Delhi Vs. Rameshwar Dayal and others, . In the latter decision, it had been held that the discretion conferred on the Court by Section 149 is normally expected to be exercised in favor of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind and that the question of bona fides has to be considered from the point of view of its definition as contained in the General Clauses Act and not as contained in the Limitation Act so that a thing should be presumed to be done bona fide if it is done honestly, whether it is done negligently or not, for the purpose of judging whether discretion under Section 149 should or should not be exercised in favor of the litigant. The aforesaid decisions of this Court was based on an earlier decision of the Full Bench of the Lahore High Court in the case of Jagat Ram Vs. Misra Ram and another AIR 1938 Lahore 361, in which it had been pointed out that the discretion conferred on the Court by Section 149 was normally expected to be exercised in favor of the litigant except in cases of contumacy or positive mala fide or reasons of a similar kind and that the question of bona fies in this connection had to be considered in the sense that word is used in the General Clauses Act and not as used in the Limitation Act. The same principle would apply in the administration of Section 148 of the Code of Civil Procedure.
8. It is thus clear that when confronted with the plea that the delay of four days in the payment of court fees should or should not condoned, the proper approach of the Courts below ought to have been to put themselves to an enquiry, if in dealing with the matter the appellant was acting bona fide, that is, honestly and without any mala fide motive or whether he was acting contumaciously, in that, it persisted in non-payment of the court fees in spite of a number of opportunities having been granted for the purpose. It was not disputed before me that the plea for condensation was at no stage resisted on the ground of mala fide. It was irrelevant, in that view of the matter, for the Courts below to embark upon an enquiry if in dealing with the matter, the appellant or his agent or his counsel or counsel’s agent acted diligently or negligently. This wrong approach to the problem on the part of the Courts below has clearly vitiated both the orders and the same must, therefore, be set aside.”
10. Reference may lastly be made to the decision of the High Court of Kerala in V.O. Devassy Vs. Periyar Credits and another (Supra). In the cited case, suit was based on a promissory note dated 9.3.1984 and it had been presented on 9.3.1987. It was returned on the same date day for representation after curing the defect, viz., insufficiency of court fee. The plaint was re-presented on 24.3.1987 with deficit court fee. It was contended that the suit had become barred by limitation and a valuable right had accrued to the defendant of the suit being barred by the date on which the deficit court fee was paid. The High Court of Kerala in this case considered the case law as also the effect of order permitting making up of the deficiency under Section 149, on the plea of limitation. Principles governing the sound exercise of discretion were enumerated. The Court also considered the provision of Order VII Rule 11 CPC, which enjoins upon the Court to grant opportunity or time to make up the deficiency under Rule 11(c) of Order VII CPC, before the plaint can be rejected under the said provision. The learned Single Judge has succinctly summed up the legal position as under:-
16. The principles emerging from the aforesaid decisions can be stated thus: Section 149, CPC empowers the Court to allow any person by whom court-fee is payable to pay the whole or part, as the case may be, of such court fee. Upon such payment the documents 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. Section 149 has to be treated as an exception to Ss.4 and 6 of the Court Fees Act, 19\870 and serves as a proviso to those sections by allowing the deficit to be made good within the time fixed by the court. But the power is subject to the discretion of the court to be exercised in accordance with judicial principles and cannot be claimed as of right. If the court has received the deficit court-fee and admitted the plaint or the court has impliedly extended the period, the payment of deficit shall take effect from the date of presentation of the plaint or appeal, as the case may be. The words “at any stage” in Sec. 149 contemplates that the deficiency can be ordered to be made good even after the period of limitation for filing appeal or the suit has expired. The discretion can be exercised even in the case of a plaint without any court-fee. When the court allows the plaintiff or the appellant time to pay deficit court-fee in exercise of its discretion, the other party cannot attack the order on the ground that it takes away his right to plead the bar of limitation; nor can he claim to have derived a vested right by the non-payment of the court-fee. Under the latter part of Sec. 149 the defective plaint or appeal memorandum is validated with retrospective effect if the deficit court-fee is subsequently made up. The power to permit the party to pay the deficit court-fee is not in any way affected by any bar of limitation. The section is general in its terms and applies to all documents chargeable with court fee under the Court-fees Act including plaints, appeal memorandum etc.
17. Under Order VII, Rule 11(c) the court is bound to grant some time to supply the deficit court-fee on a plaint insufficiently stamped. The plaint is liable to be rejected under that sub-rule only if the plaintiff has failed to supply the requisite stamp paper within the time as required by the Court. The court has therefore an obligation to require the party to make good the deficiency in the case of a plaint. The discretion conferred on the court under Sec. 149 is over and above this obligation under Rule 11 of Order 7. In the case of an appeal the discretion under S. 149 applies. The proper provision under which time may be granted or extended is Sec. 149 and not Order VII, Rule 11 which only states the circumstances in which the plaint shall be rejected. In other words, Rule 11 of Order VII is not an enabling provision, but only a disabling one.”
11. At this stage, I may also notice the decisions relied on by the learned counsel for the defendant in support of his contention that no ground is made out for condoning the delay in refiling as well as for making up the deficiency in court fee.
12. Learned counsel for the defendant relied on Chintapatla Venkatanarasimha Ramchandra Rao and others reported at . The memorandum of appeal had been preferred on 14.4.1930. This was a case, where the appeal memorandum had been returned for re-presentation on the following dates:
17.7.1930, 19.12.1930, 6.6.1931, 30.4.1931 and finally on 13.7.1931.
It entailed in all delay of 687 days. The explanation given was that client was not sending full instructions, money had not been sent due to dullness of the grain market. The application for condensation of delay, which was made also related to the first re-presentation. The argument raised before the Court was that it was not open to the Court to dismiss the Memorandum of Appeal. The most the Court could do was to order payment of cost of appeal. Learned counsel relied on the provisions of Order 41 Rule 3 (1) CPC to urge that in case the Memorandum of Appeal was not drawn up, as required, the power was to return to the appellant for the purpose of amendment within the time fixed. The Court held that the appeal had not been admitted on account of various defects. The Court held that as long as there are such defects, the memorandum of appeal could not be entertained and all that the Court can do is to return it and give the petitioners the chance of putting it again in a complete form. Any time that it allows for re-presentation is only by way of concession. Continuance or extension of the concession cannot be demanded as a matter of right, at any rate after the expiry of the normal period of limitation, within which an appeal can be presented. The Court in circumstances declined to grant any further time to put the appeal in proper form and rejected the same.
13. The above case is clearly distinguishable, since it entailed a delay of 687 days and repeated opportunities being granted for re-presentation of the Memorandum of Appeal. Even though there may not be any quarrel with the proposition laid down in the case that the time granted for re-presentation is by way of concession and cannot be demanded by way of right, the legal position would be that any extension of time has to be considered and is governed by the exercise of discretion on sound legal principles in accordance with the provisions of Section 149 of the Code of Civil Procedure.
14. Reliance was also placed on Gurbachan Singh Vs. Mastan Singh etc. reported at Punjab Law Reporter 1984 Vol. LxxxvI 438, where the Court while considering the scope and applicability of the High Court Rules and Orders Vol. 5 Chapter 1-A(a) held that appeal having been returned by the registry pointing out defects was refiled after 85 days and party could not be given latitude in complying with the order of the registry. Such misuse required to be checked. The Court observed that if latitude is given to litigants they might not only take months, but years for complying with the orders. The appellant in this case took 85 days to refile the appeal after removing the defects pointed out by the registry. It may be noted that the Court was considering in this case a review petition, where the exercise of discretion is circumscribed by the provisions of Order 47 CPC and Section 114 of the CPC. In any case, in view of the judgment of this Court in Parma Nand Vs. Kamla Sethi (Supra) and Custodian of Evacuee Property, New Delhi Vs. Rameshwar Dayal and others (supra) and the principles laid down in the judgment of the Supreme Court in Mahanth Ram Das Vs. Ganga Das (Supra) as also in Indian Statistical Institute Vs. M/s.Associated Builders and others (supra), the above authority cannot come in the way of exercise of discretion, when the case is otherwise made out.
15. Lastly the decision of a Division Bench of this Court in Union of India Vs.Mangat reported at 1989(1) Current Civil Cases 109, on which reliance has been placed by the defendant may be noticed:-
Firstly the Division Bench was concerned in the cited case with spate of appeals preferred under the Land Acquisition Act with enormous delay and cryptic and routine explanation being tendered, namely, that the department took time to furnish the relevant documents and to arrange for the court fees without any particulars. The Court in this case was concerned with the condensation of delay under Section 5 of the Limitation Act. The Court was also seized of how to reconcile the principles laid down by the Supreme Court, namely, the doctrine of equality before law demanding that all litigants including the State as litigant should be accorded the same treatment with the proposition it would perhaps be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. The reference here being to the usual delays which are entailed in bureaucratic and Governmental functioning, where the Court ought to take a more lenient approach in dealing with it.
The Division Bench though dealing with the question of condensation of delay under Section 5 of the Limitation Act laid down, ” A golden rule for reconciliation of these conflicting considerations would be to use the discretion with common sense. Extreme positions of either not condoning the delay howsoever negligible it may be or to condone the delay howsoever large and unjustifiable it may be should be avoided. The discretion has to be exercised on the basis of the facts of each case with common sense and public interest in view.”
16. Having noted the legal position, as enumerated and as noticed in V.O. Devassy Vs. Periyar Credits and another (supra) and other authorities referred to in paras 6 to 9, the position which emerges is that i) Section 149 CPC has to be interpreted and given effect to in a liberal manner; ii) the payment of deficit court fee is a matter between the State i.e. Revenue and the plaintiff; iii) the effect of allowing an application under Section 149 CPC is as if the deficit court fee stood paid on the date of initial presentation; iv) while judging whether the application under Section 149 CPC should be allowed or not the same has to be tested on the touch stone of whether the plaintiff acted bona fide as per the definition of expression in General Clauses Act and not as per the Limitation Act; v) Relief is to be denied to the plaintiff if he did not act bona fide or his conduct was contumacious.Relief is not to be denied even though he may not have been diligent or had even been negligent.
17. The rules of procedure fixing a stipulated period within which defects are to be removed are intended to avoid delay by litigants and to ensure promptitude. These are not intended to be punitive or to render the Court powerless upon expiry of stipulated period, to do justice when required.
18. Let us consider the present case in the light of the foregoing judicial pronouncements, as noticed in para Nos. 6 to 10 and the legal principles enumerated above.
19. Plaintiff undoubtedly instituted the suit on 10.10.2002. Based either on the plea of part payment as per the plaintiff or on the plea of accord and satisfaction upon payment of Rs. 25 lacs by the defendant on 6.12.1999, the said suit was within time. It could even have been filed up to 6.12.2002. Plaintiff has undoubtedly been negligent in not moving an application for extension of time for refiling or for condensation of delay and extension of time for making up the deficit court fee when refiling the suit on 2.11.2002 along with deficit court fee. These applications were moved on 7.1.2003 and 1.2.2003. Plaintiff’s explanation for delay is that he was arranging for funds for making the payment of huge amount of Rs. 75,600/-, which was required as court fee, is a plausible one. It was not a case where the plaintiff has contended that either the court fee was not payable or that he was not liable to pay. Even in a suit as an indigent person under Order XXXIII, if the Court ultimately holds that IPA is not maintainable and the plaintiff has the means to pay the Court fee, a direction is given for payment of the same.
20. On perusal of the pleadings in the applications, it is evident that the plaintiff had nothing to gain by delaying making up the deficiency in court fee. There is no element of any mala fides or contumacy. In fact what is alleged even by defendant is negligence. This the plaintiff explains by stating that it was his inability to arrange for the requisite funds. Plaintiff, of course, was negligent in not filing the application for extension of time for refiling as also for extension of time to make up the deficiency in court fee on time. Applying the above principles, the time for payment of deficit court fee deserves to be extended and is hereby extended up to the time the deficiency in court fee was made i.e. up to 2.1.2003.
IA. Nos. 729/2003 and 1925/2003 are allowed, subject to payment of Rs. 10,000/- as costs, to be paid to the defendant within two weeks.
It is made clear that it would be open for the defendant to raise objections as to the suit being barred by limitation as instituted on 10.10.2002, as also all other legally admissible pleas in opposition. The effect of the present applications being allowed under Section 149 CPC is that the deficiency in Court fee is permitted to be made up as of 10.10.2002. It would thus be open for the defendant to plead that the suit as instituted on 10.10.2002 was barred by limitation, if so advised.