ORDER
S. Ashok Kumar, J.
1. This CRP is filed by the defendant as against the dismissal of the I.A., filed by him under Order 7, Rule 11(c) CPC, to reject the plaint as proper court fee has not been paid as stipulated in the provision and the same has been paid after the period of limitation of the suit.
2. The suit has been filed by the respondent/plaintiff for recovery of amount based on a promissory note allegedly executed by the petitioner/defendant. Pending the suit the defendant filed the I.A., stating that the suit is barred by limitation. According to him, the suit has been filed on 21.6.2005 and on the date of presentation of the plaint, the sit has been filed with insufficient stamp of Rs. 100/= only. Hence the suit was returned on the next day i.e, 22.6.2002 for payment of proper court fee by granting two weeks time for re-presentation. On 14.9.2005 the plaint was represented along with an I.A.No:983 of 2005 dated 20.9.2005 to condone the delay of 69 days in representation of the plaint only. On that the deficit court fee was paid and the plaint was ordered to be numbered by the trial court. But no application has been filed seeking permission of the court to present the plaint with deficit court fee on 21.6.2005 since the deficit court fee of Rs. 4663/= has been paid only on 14.9.2005 i.e,. beyond the period of limitation and therefore the plaint is liable to be dismissed.
3. However the trial court dismissed the said Interlocutory Application holding that limitation aspect could be raised at the time of trial of the suit
4. Learned Counsel for the revision petitioner contended that in the absence of a specific application filed under Section 149 CPC to condone the delay in payment of deficit court fee and even when there is no prayer for extension of time in paying the deficit court fee in the I.A., filed by the plaintiff to condone the delay of 69 days in representing the plaint, the plaint ought to have been rejected by the trial court for non compliance of Order 78 Rule 11(c). The trial court also failed to appreciate the law laid down by a Division Bench of this Court in 2003 (3) LW. 803 wherein this Court held that there must be a separate petition under Section 149 CPC and the defendant should be heard before condoning the delay especially when the plaint is represented after the period of limitation fixed for filing the suit.
5. It is not in dispute that the suit has been filed on 21.6.2005 with the deficit court fee of Rs. 100/= and the same was returned on 22.6.2005 by granting two weeks time to represent the plaint with proper court fees. But the plaint has been represented only on 14.9.2005 and deficit court fee was paid on the same date. On the said date of representation of the plaint, the plaintiff has taken out an Interlocutory Application under Section 151 CPC to condone the delay in representing the plaint. But admittedly, there is no petition filed under Section 149 CPC seeking extension of time for payment of deficit fee or to condone the delay in payment of such deficit court fee. Admittedly in the present case, the suit being filed on a promissory note dated 22.6.2002, the limitation expires on 22.6.2005 and hence the subsequent payment of court fee on 14.9.2005 without there being any specific relief claimed under Section 149 CPC, will not save the limitation and the suit cannot be revived.
6. In V.N. Subramaniyam v. A. Nawab John and Ors. reported in 2007 (I) MLJ 669, this Court had an occasion to decide similar issues and held as follows:
7. A perusal of the impugned orders and the typed set of papers would clearly show that the delay condonation applications have not been field under Section 149 CPC or a separate prayer has been included to pay the deficit court fee with such delay. In fact the said applications have been filed under Sections 148 and 151 CPC to condone the delay of representation alone. The decisions in Padmidikkala Sitharamayya and Ors. v. Ivaturi Ramayya and Anr. 1938 MLJ 515 DB and S.V. Arjunaraja v. P. Vasantha 2005 (5) CTC 401, this Court held that in the absence of specific application invoking Section 149 CPC and in the absence of any order passed by the court granting time for payment or enlargement, the plaintiff is not protected and the suit is liable to be rejected. It is also held that mechanical return of the plaint, which cannot be said that n order has been passed, extending the time for payment of court fees, would save the limitation, if the court fees is paid, after the period of limitation prescribed is lapsed.
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14. As regards invocation of Section 151 CPC instead of 149 CPC, it is to be held that only in the absence of any specific provision, the inherent provision of Section 151 can be invoked as has been held in Muthulingam v. Gangai Ammal reported in 2001 (2) L.W. 347. Thus, in the present case the plaintiffs could have invoked Section 149 CPC as well to condone the delay in in paying the deficit court fee while representing the Plaint.
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16. Under these reasons since there is no invocation of the specific provision of Section 149 CPC and consequential prayer to condone the delay in payment of the deficit court fee while representing the Plaint, the Subordinate Judge has erred in allowing the I.A.Nos:75 and 76 of 2004 by exercising the discretion without analysing the bona fides of the plaintiffs case and without giving notice to the defendant. Accordingly, the CRP Nos. 657 and 658 of 2006 are allowed.
7. The ratio decidendi in the above case was that in the absence of any order being passed under Section 149 CPC, granting time for payment or enlargement of time for payment of deficit court fee, the plaint is not protected with limitation period and the suit itself is liable to be rejected. Because when a specific provision viz., Section 149 CPC is available, the plaintiff cannot invoke Section merely Section 151 CPC. The above dictum laid down by this Court in the above decision, after following the Division Bench judgment of this Court as well some of the decisions of the Apex Court, will squarely applicable to the facts of the present case. Therefore it is not proper on the part of the trial court to disobey the same and in fact it has misdirected itself in relying on the decision of this Court 2003 (3) LW 803. Following the above dictum it is clear that the allowing the I.A.No:983 of 2005 which has been only filed to condone the delay of 69 days in representing the plaint alone, will not amount to condone the delay in payment of deficit court fee and therefore it will not cure the defect in praying the relief under Section 149 CPC and the deficit court fee paid later on after the expiry of the limitation period for the suit will not have the effect as if the court fee has been paid in the first instance as saved in Section 149 CPC. Consequently, the plaint which has the effect of time barred one, is liable to be struck off. The rejection of plaint is a crucial issue to be decided at the first instance, because no one should be allowed to prosecute a frivolous suit by nullifying the law laid down by this Court. Therefore, the trial court is duty bound to decide the issue one way or the other with the available materials on record and in the facts and circumstances of the case, the conclusion arrived by the trial court is unwarranted and liable to be set aside.
8. In the result, the CRP is allowed setting aside the order passed in I.A.No: 186 of 2006 and O.S.No: 302 of 2005 dated 20.9.2006 by the learned District Munsif, Gobichettipalayam. The Plaint shall stand rejected from the file of the District Musnif Court, Gobichettipalayam. Consequently, connected M.P., is closed. No costs.