JUDGMENT
S.C. Mohapatra, J.
1. Plaintiff is the appellant against the order rejecting the plaint for nonpayment of the Court-fee.
2. The suit was for declaration that the decree passed by Calcutta High Court in Award Case No. 74 of 1958 is void against the plaintiff and therefore, it is not executable which was valued at Rs. 14,500/- and Court-fee of Rs. 150/- was paid. On the objection of the defendant, trial Court by order dated 14-8-1975 directed the plaintiff to pay ad valorem Court-fee on Rs. 14,500/- under Section 7(iv)(a) of the Court-fees Act, 1870, as amended in Orissa. On the next date, plaintiff filed an application for amendment of the plaint so far as the relief claimed. Plaintiff sought for substituting the following relief : —
“Let it be declared that the plaintiff has no liability in respect of the amount decreed by the Calcutta High Court in Award Case No. 74 of 1958 dated 22-7-1963 as the same is not binding on him.”
This prayer for amendment was refused by order dated 24-9-1975. Plaintiff filed Civil Revision No. 378 of 1975 in this Court against the order calling upon him to pay ad valorem” Court-fee and Civil Revision No. 379 of 1975 against the order refusing amendment of the plaint. Civil Revision No. 378 of 1975 was dismissed on 3-2-1976 in effect confirming the order of payment of ad valorem Court-fee. While allowing Civil Revision No. 379 of
1975 by order dated 3-2-1976 allowing the prayer for amendment of the plaint, direction was given to pay ad valorem Court-fee on Rs. 14,500/- within one month. Ad valorem Court-fee on Rs. 14,500/- was not paid by 3-3-1976 and an application was filed in the trial Court on 2-3-1976 for extension of time till 5-3-1976 to pay the balance Court-fee of Rupees 225/-. The application could not be taken up for final disposal on that date in view of absence of the Presiding Officer. On 6-3-1976, Court-fee of Rs. 225/- was paid claiming the same to be ad valorem fee. Trial Court accepted the Court-fee on 6-3-1976 and fixed the case for hearing. On 19-7-1976, the defendant brought to the notice of the trial
Court that the plaint should be rejected for non-payment of Court-fee. After hearing the parties on the question, trial Court rejected the plaint by order dated 20-7-1976 which is the impugned order in this appeal.
3. Two questions arise for consideration in this appeal :
(i) Whether the Court-fee paid is sufficient? and
(ii) Whether the Court-fee paid late could have been accepted without a specific order of this Court extending the time?
4. Mr. Ranjit Mohanty, the learned counsel for the appellant, submitted that ad valorem Court-fee has been paid. I am not inclined to accept the submission. Trial Court directed payment of Court-fee under Section 7(iv)(a) of the Court-fees Act which would have to be paid under Schedule I, Article 1 thereof. However, having accepted the deficit Court-fee paid, the Court was required to give opportunity to the plaintiff to pay the balance before rejecting the plaint since there is no specific order indicating the exact amount payable.
5. The next contention of Mr. Mohanty is that after two amendments of the plaint a declaratory Court-fee as provided in Schedule II, Article 17A of the Court-fees Act is payable. The question is no more open to be agitated either in the trial Court or before me since in the Civil Revision No. 379 of 1975 it has specifically been directed to pay the ad valorem Court-fee.
6. The next question is whether the trial Court could have extended time to pay the deficit Court-fee. When a higher Court has fixed a time without any direction to the trial Court to extend time in deserving case, power under Section 149, C.P.C. or even under Section 151, C.P.C. cannot be exercised by the Subordinate Court. The extension can be granted by the Court fixing the time or any Court to which the higher Court is subordinate. In this case, however, there has been misconception regarding interpretation. The orders in both the Civil Revisions read
together make it clear that Court-fee was
payable under Schedule I, Article 1 of the
Court-fees Act. Plaintiff was under the
impression that after amendment of the plaint,
the ad valorem fee was payable under
Schedule I, Article 3 of the Court-fees Act.
This is a lawyer’s mistake. In the interest of
justice, therefore, I direct the plaintiff to pay
the Court-fee of Rs. 1,446.75 paise on the
plaint. Having already paid Court-fee of
Rs. 375/- the deficit only shall be paid within
six weeks from today. Defendant is not
responsible for the mistake of the plaintiff.
He has suffered a prolonged litigation and
shall also further suffer. Therefore, he is
entitled to costs of Rs. 1,500/- (one thousand
five hundred) which shall be paid by the
plaintiff to the defendant within one month,
failing which the deficit Court-fee shall not
be accepted and the plaint shall stand rejected
without further reference to Bench. Both the
parties are directed to appear in the trial
Court on 14-12-1987 on which day being
satisfied that the costs have been paid, trial
Court shall fix the date within time stipulated
for payment of the deficit Court-fee and on
payment of the same, after giving opportunity
to the defendant to file additional written
statement on the basis of the amended plaint,
shall proceed with the hearing of the suit in
accordance with law to conclude the same
before end of March, 1988.
7. Subject to the aforesaid conditions, the First Appeal is allowed. There shall be no order as to costs in this First Appeal.