{"id":59095,"date":"2009-07-14T00:00:00","date_gmt":"2009-07-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahalingam-vs-k-krishnasamy-naidu-on-14-july-2009"},"modified":"2018-06-21T11:07:11","modified_gmt":"2018-06-21T05:37:11","slug":"mahalingam-vs-k-krishnasamy-naidu-on-14-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahalingam-vs-k-krishnasamy-naidu-on-14-july-2009","title":{"rendered":"Mahalingam vs K.Krishnasamy Naidu on 14 July, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
Mahalingam vs K.Krishnasamy Naidu on 14 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 14\/07\/2009\n\nCORAM\nTHE HONOURABLE Mr. JUSTICE M.M.SUNDRESH\n\nC.R.P.(MD)No.1489 OF 2007\nand\nC.R.P.(PD)(MD)No.158 OF 2008\nand\nM.P.(MD)No.1 of 2007\n\n1.Mahalingam \t\t\t\t.. Petitioner in CRP 1489\/07\n2.Subbnuram \t\t\t\t.. Petitioner in CRP 158\/08\n\t\t\t\t\nVs.\n\n1.K.Krishnasamy Naidu\t\t\t.. Respondent in CRP 1489\/07\n2.Mary Agnes\t\t\t\t.. Respondent in CRP 158\/08\n\nPRAYER IN CRP 1489\/07\n\nCivil Revision Petition filed under Article 227 of the\nConstitution of India, praying to set aside the order passed in I.A.No.367 of\n2006 in O.S.No.353 of 2000 on the file of Subordinate Judge, Srivilliputtur,\ndated 27.07.2007 by allowing the Civil Revision Petition.\n\nPRAYER IN CRP 158\/08\n\nCivil Revision Petition filed under Article 227 of the\nConstitution of India, praying to call for the records relating to\nI.A.No.60\/2007 in un numbered suit on the file of Sub Court, Aruppukottai, dated\n14.11.2007 and set aside the same.\n\n!For Petitioner  ...Mr.M.Ashokkumar\n(in CRP 1489\/07)\nFor Petitioner   ...Mr.Natarajan\nin CRP 158\/08\t\t\n^For Respondent  ...Mr.V.R.Venkatesan\nin CRP 1489\/07\t\t\nFor Respondent   ...Mr.T.Lajapathiroy\nin CRP 158\/08\t\t\n\n:ORDER\n<\/pre>\n
\tIn view of the common issues involved in the above revisions, they have
\nbeen taken up for hearing together.\n<\/p>\n
\t2.The brief facts in C.R.P.(MD)No.1489 of 2007 are as follows:-\n<\/p>\n
\tA suit was filed in O.S.No.253 of 2000 by the respondent for specific
\nperformance on the file of Sub Court, Srivilliputhur.  At the time of filing the
\nsuit, a part of the Court fee has not been paid and thereafter, an application
\nwas filed in I.A.No.1353 of 2000, to condone the delay in paying the deficit
\ncourt-fee.  The said application was allowed and the payment has been made by
\nthe respondent\/plaintiff.  Contending that the said amount has been paid beyond
\nthe period of limitation, an application was filed in I.A.No.367\/2006, to
\ndismiss the suit as one barred by limitation at the time of the trial.\n<\/p>\n
\t3.The brief facts in C.R.P.No.158 of 2008 are as follows:-\n<\/p>\n
\tA suit was filed by the respondent in unnumbered suit on 14.09.2007, on
\nthe file of Sub Court, Aruppukottai, seeking the relief of recovery of money.
\nSince there was a deficiency in the Court fee, an application was filed in
\nI.A.No.60 of 2007, seeking permission to pay the deficit Court fee of Rs.7,947\/-
\nunder Section 149 r\/w 150 of the Code of Civil Procedure.  In the said
\napplication notice has been ordered and after hearing both sides, the Court
\nbelow has allowed the said application. Challenging the said order, the above
\nrevision has been filed, contending that the respondent\/plaintiff has not paid
\nthe Court fee within the period of limitation.\n<\/p>\n
\t4.The common issue to be decided in both these revisions is that can the
\nCourt exercise the power under Section 149 of the Code of Civil Procedure, in
\nextending the time for the payment of Court fee after the period of limitation.\n<\/p>\n
\t5.Heard the learned counsel for the petitioners as well as the learned
\ncounsel for the respondents.\n<\/p>\n
\t6.Mr.M.S.Balasubramanian Iyer, has also assisted the Court, since there
\nare conflicting judgments over the issue raised and also in view of the fact
\nthat the trial Courts are facing the problems while granting permission towards
\nthe payment of deficit Court fee.\n<\/p>\n
\t7. Before proceeding with the case and in order to appreciate the
\ncontroversies involved, the provision of Sections 148 and 149 of the Code of
\nCivil Procedure will have to be looked into.  They are extracted hereunder:-\n<\/p>\n
\t\t“Sec.148. Enlargement of time- where any period is fixed or granted
\nby the Court for the doing of any act prescribed or allowed by this Code, the
\ncourt may, in its discretion, from time to time, enlarge such period, [not
\nexceeding thirty days in total] even though the period originally fixed or
\ngranted may have expired.”\n<\/p>\n
\t148-A …\n<\/p>\n
\t“149. Power to make up deficiency of Court-fees – Where the whole or any
\npart of any fee prescribed for any document by the law for the time being in
\nforce relating to court-fee has not been paid, the Court, may, in its
\ndiscretion, at any stage, allow the person, by whom such fee is payable, to pay
\nthe whole or part, as the case may be, of such court-fee and upon such payment
\nthe document, in respect of which such fee is payable, shall have the same force
\nand effect as if such fee had been paid in the first instance.”\n<\/p>\n
\t8.A perusal of Section 148 of C.P.C. would show that in a case where, a
\nperiod is fixed or granted by the Court for doing any act, the Court may in its
\ndiscretion from time to time enlarge such period, even though the period
\noriginally fixed may have expired.\n<\/p>\n
\t9.Interpretation of Section 149 of the Code of Civil Procedure:-\n<\/p>\n
\tSection 149 of the Code of Civil Procedure provides that where the whole
\nor any part of any fee prescribed for any document relating to court-fee has not
\nbeen paid then the Court, may, in its discretion, pass such orders pay the same.
\nThe words “whole or any part of any fee” would therefore mean that even if the
\nplaint is presented without payment of any Court fee, the power under Section
\n149 of the Code of Civil Procedure can be exercised.  Therefore, the power of
\nthe Court which invokes Section 149 of the Code of Civil Procedure is very wide.\n<\/p>\n
\t10.Secondly, the word ‘document’ mentioned in the said Section would
\ninclude any document.  The Section itself makes it clear that ‘any document’ for
\nwhich fees prescribed relating to Court fee.  Therefore, the said definition of
\n‘any document’ would also include a plaint.  Hence, the power under Section 149
\nof the Code of Civil Procedure, will have to be exercised while allowing the
\npayment of deficit Court fee.\n<\/p>\n
\t11.The words “the Court, may, in its discretion, at any stage”, would mean
\nthat the discretion is very wide.  Such discretion can only be exercised in
\nfavour of the litigant, who comes to the Court ventilating his grievance.
\nTherefore, while exercising such discretion, the Court will have to exercise the
\nsame in favour of the litigant in the normal circumstances without adhering to
\ntechnicalities.  Similarly, the word ‘may’ as it occurs in Section 149 of
\nC.P.C.,  will have to be seen as ‘shall’, since Section 149 speaks about the
\npower of the Court to make up the deficiency of the court-fee. Importance will
\nhave to be given to the words “at any stage”. This would only mean that the
\nconcerned court shall have to exercise the power under Section 149 of C.P.C. at
\nany stage of the suit if it comes to its knowledge that the court-fee paid is
\ninsufficient.\n<\/p>\n
\t12. A further reading of Section 149 of the Code of Civil Procedure also
\nclearly indicates that once a Court exercises it discretion in favour of a party
\nunder Section 149 of C.P.C., then the same shall have the same force and effect
\nas if such fee had been paid in the first instance.  In other words, once an
\norder is passed under Section 149, and the same is complied with by a party
\nconcerned, then the order will have the retrospective effect starting from the
\ndate of the presentation of the plaint.  Therefore, a reading of the above said
\nSection would clearly show that the power exercised under Section 149 of C.P.C.,
\nis procedural in nature and the discretion is rather wide for the Court while
\nallowing the application.  A further reading of the said Section would show that
\nthe said power under Section 149 of C.P.C., is an inherent power given to the
\nCourt in directing a party to make the deficit court-fee.  Duty is cast upon the
\nCourt to consider, if the document presented to the Court is affixed with proper
\ncourt-fee.  Hence, a reading of the above said Section shows that the concerned
\ncourt can and shall direct the party to make the payment of deficit court-fee
\neven without an application seeking permission of the Court to make the said
\npayment.\n<\/p>\n
\t13.In view of the above said position, it is neither necessary for a party
\nto make an application for the payment of deficit court-fee and when the
\napplication is filed under Section 151 of C.P.C., the same is deemed to have
\nbeen filed under Section 149 of C.P.C., seeking invocation of the power of the
\nCourt under Section 149 of C.P.C.  In other words, the application filed under
\nSection 151 of C.P.C., would only amount to warranting the Court to exercise the
\npower under Section 149 of C.P.C.  Therefore, in view of the specific provisions
\ncontained in Section 149 of C.P.C., stating that an order permitting the payment
\nof court-fee would relate backs to the presentation of the plaint, the question
\nof limitation would not arise for consideration.  The question of limitation
\nwould come when the plaint is presented after the period of limitation as
\nprescribed by law.  Inasmuch as the power exercised under Section 149 of C.P.C.,
\nis procedural in nature and also in view of the fact that an order allowing the
\napplication providing for payment of Court fee would relate backs to the date of
\nthe plaint the question of limitation does not arise.\n<\/p>\n
\t14. In this connection it is useful to refer Order VII, Rule 11 of the
\nCode of Civil Procedure.\n<\/p>\n
\t“11.Rejection of Plaint – The plaint shall be rejected in the following
\ncases:-\n<\/p>\n
\t(a) where it does not disclose a cause of action;\n<\/p>\n
\t(b) where the relief claimed is undervalued, and the plaintiff, on being
\nrequired by the Court to correct the valuation within a time to be fixed by the
\nCourt, fails to do so;\n<\/p>\n
\t(c)Where the relief claimed is properly valued, but the plaint is written
\non paper insufficiently stamped, and the plaintiff does not make good the
\ndeficiency withing the time, if any, granted by the Court”.\n<\/p>\n
\t(d) where the suit appears from the statement in the  plaint to be barred
\nby any law;\n<\/p>\n
\t(e) where it is not filled in duplicate.\n<\/p>\n
\t(f) where the plaintiff fails to comply with the provisions of rule 9.
\n\t[Provided that the time fixed by the Court fee for the correction of the
\nvaluation or supplying of the requisite stamp-papers shall not be extended
\nunless the Court, for reasons to be recorded, is satisfied that the plaintiff
\nwas prevented by any cause of an exceptional nature from correcting the
\nvaluation or supplying the requisite stamp papers, as the case may be, within
\nthe time fixed by the Court and that refusal to extend such time would cause
\ngrave injustice to the plaintiff].\n<\/p>\n
\t15. A perusal of the order VII, Rule 11 “(b)” would show that in a case,
\nwhere the relief claimed is undervalued, the same will have to be corrected by
\nthe plaintiff “on being required” by the Court.  When the plaintiff fails to
\ncomply with the same within a time given by the Court, thereafter only, the
\npower under Order VII, Rule 11 of C.P.C. could be involved. Similarly, Oder 7,
\nRule 11 “C” stipulates that in a case where the relief claimed is property
\nvalued but the plaint is insufficiently stamped then the deficiency will have to
\nbe made good.  The said provision is also makes it clear that the deficiency
\nwill have to be made good within a time granted by the Court.  Hence, the above
\nsaid provision shows that the Court has to be given time for payment of deficit
\nCourt fee.\n<\/p>\n
\t16.Order VII, Rule 11 proviso speaks about the consequences that would
\nfollow when a direction given by the Court regarding the payment of Court-fee is
\nnot complied with.  Under the said proviso, the Court shall not extend the time
\nunless it is specified for the reasons to be recorded that the plaintiff was
\nprevented by any cause of an exceptional nature from correcting the valuation or
\npaying the required stamp duty within a time fixed by the Court and that refusal
\nto extend such time would cause grave injustice to the plaintiff.  Therefore, as
\nper the said proviso, extension of time is subject to the satisfaction of the
\nCourt and while extending the time, the Court has to record the reasons that the
\nplaintiff was prevented for the reasons stated in the said proviso.  The Court
\ncan also extend the time taking into consideration of the grave justice that
\nwould be caused to the plaintiff.\n<\/p>\n
\t17.On a consideration of the above said provision, this Court is of the
\nopinion that the said provision made under Order VII, Rule 11, will have to be
\nread in the light of Section 149 of C.P.C.  Therefore, this Court is of the view
\nthat the question of limitation would not arise when the Court exercises the
\npower under Section 149 of CPC. Unfortunately, the said provision has not been
\nbrought to the knowledge of the Hon’ble High Court in the earlier occasions.\n<\/p>\n
\t18.In the judgment reported in Gavaranga Sahu Vs. Botokbishna Patro and
\nothers ( 1909 (32) ILR Mad 305) (FB), the Full Bench of this Court, has held
\nthat in a case where the deficit Court fee has been paid after the period of
\nlimitation with a permission of the Court, the suit cannot be considered as a
\none filed beyond the period of limitation.\n<\/p>\n
\t19.In the judgment in Basavayya Vs. Venkatappayya  reported in (51 MLJ\n<\/p>\n
90), this Court has held that an order accepting payment of deficit Court fee
\nwithout an explicit order extending the time would amount to payment of the
\nCourt fee at the time of the original presentation.\n<\/p>\n
\t20.In the judgment in Venugopal Pillai Vs. Thirugnana Valliammal reported
\nin (1940 (2) MLJ 487), the Division Bench of this Court has held that if the
\ndeficit Court fee is paid after the period of limitation, the same would date
\nback to the date of its initial presentation.\n<\/p>\n
\t21.However, in the judgments in Natarajan Vs. Rajasekaran    (2003 (3)
\nL.W. 803): (2003 (2) MLJ 305), followed by Arjunaraja Vs. P.Vasantha (2005 (5)
\nCTC 401), Subramaniyam Vs. A.Nawab John and others (2007 (1) MLJ 667),
\nGopalasamy Vs. C.Senpagam (2007 (5) CTC 283), K.Kalisamy and another Vs.
\nMrs.R.Gowri (2007-3-L.W.850), this Court has held that the deficit Court fee
\nwill have to be paid within the period of limitation, the application made under
\nSection 151 of C.P.C. will not be sufficient, for seeking the payment of Court
\nfee and notice will have to be issued to the respondent before deciding the
\nissue after the first time.  In this connection it is to be noted that in the
\nsubsequent judgment reported in 2009 3MLJ 760 (A.Gurunathan Vs. T.Muthulakshmi),
\nthe High Court has taken a view that the exercise of power under Section 149 is
\nonly a procedural and even without an application under Section 149 of C.P.C.,
\ntime can be extended.\n<\/p>\n
\t22.In the judgment in Natarajan, K. Vs. P.K. Rajasekaran reported in (2003
\n(3) L.W 803) and S.V.Arjunjaraja Vs. P.Vasantha reported in (2005 (5) CTC 401),
\nthe judgment of the Full Bench of this Court in (1909 (32) ILR Mad 305) (FB) has
\nbeen referred to, but the same has not been specifically over ruled. Inasmuch as
\nthe judgment of the Full Bench having not overruled, this Court is of the
\nopinion that the judgment of the Full Bench will have to be followed.  In the
\njudgment reported in (2008 (2) CTC 24)(FB) Swarnavalliammal Vs. Government of
\nTamil Nadu, it has been held that a judgment delivered by the Full Bench is
\nbinding on all our Courts including the Division Bench and the Single Judge.\n<\/p>\n
\t23.In the judgment in A.Gurunathan Vs. J.Muthulakshmi reported in (2009
\n(3) MLJ 760) it has been held as follows:-\n<\/p>\n
\t“26.  It is to be pointed out that if a litigant seeks enlargement of time
\non the basis that for some reasons,he can perform the act which he is required
\nto fulfill within the time determined by the Court, it is for him to move an
\napplication under Section 148 of C.P.C. and the convenience of the Court that
\nthe interest of justice will require extension of time whether perspectively or
\nretroactively under Section 148 of C.P.C. itself.  Moreover, one is not obliged
\nto file such an application in all cases.  In this connection, in the decision
\nin Mohd.Yosuf Vs. Bharat Singh AIR 1999 Raj.185, it is held that ‘where the
\nomission on the part of the party is trivial and the mistake committed by him is
\nnot a serious nature and does not adversely affect the rights of the parties,
\nthe Court may itself extend the time under Section 148 of C.P.C. so that the
\ntechnical defects may be removed and the hearing of the case may proceed in
\naccordance with law.  Earlier, this power was without any restriction but now,
\nafter the Code of Civil Procedure (Amendment) Act, 1999, with effect from
\n1.7.2002, this power has been restricted for enlarging the period upto 30 days
\nonly.  However, the upper time limit determined under Section 148 of C.P.C.
\ncannot take away the inherent powers of the Court to pass orders as may be
\nnecessary for the interest of justice or to prevent abuse process of Court.  The
\nrigid operative play of Section 148 of C.P.C will lead absurdity.  Therefore,
\nSection 151 of C.P.C has to be allowed.  But the enlargement of time prayed for
\npayment of Court fee may not be granted under Section 148 of C.P.C. because
\nSection 149 of C.P.C. deals with the power of the Court to permit payment of
\nCourt fee at any stage as per decision of in the matter of Goods of Late
\nRavinder Kumar AIR 2004 ALL 46.\n<\/p>\n
\t27. As a matter of fact, Section 149 of C.P.C. specifies that where the
\nwhole or any part of the fee prescribed has not been paid, the Court can, in its
\ndiscretion, at any stage, allow the person by whom such fee is payable to pay
\nthe whole or part of such Court fee and upon such payment, the document in
\nrespect of which such fee is payable shall have the same force and effect as if
\nsaid fee had been paid in the first instance.  In Hukma Vs. Manga AIR 2003 (P&H)
\n287 it is held that ‘Section 148 of C.P.C in terms allows extension of time even
\nthough the original period has expired and Section 149 of C.P.C. is equally
\nliberal.  No wonder the payment of deficit Court fee relates back to the date of
\nfiling of the plaint.  The words “at any stage” in Section 149 of C.P.C. specify
\nthat deficiency can be made good even after the period of limitation for filing
\nof the suit or appear has expired.  The discretion can be exercised even in the
\ncase of a plaint without any Court fee in the considered opinion of this court.
\nIndeed, Section 149 of C.P.C. is the exception to the Rule, the suit should be
\nfiled with requisite Court fee.  Moreover, the discretion is to be considered as
\ndefined in General Clauses Act and not under Limitation Act as per the decision
\nin Custodian of Evacuee property Vs. Rameshwar Dayal AIR 1968 Delhi 183. Added
\nfurther it is relevant to state that the question of limitation does not arise
\nin respect of payment of deficit Court fee as per decision in 2003 (6) ALD 682
\nat 686 (AP).”\n<\/p>\n
\t24.The Hon’ble Supreme Court in Salem Advocate Bar Association, Tamil
\nNadu, Vs. Union of India reported in (2005(6) SCC 344) has held that the time
\nlimit fixed under Section 148 of C.P.C. cannot take away the inherent powers of
\nthe Court to pass orders for ends of justice.  The Supreme Court was pleased to
\nhold that the discretion under Section 149 C.P.C., has to be allowed to operate
\nfully.  The Hon’ble Supreme Court has further observed that even if the maximum
\nperiod of 30 days, as provided under Section 148 of C.P.C. gets expired,
\nextension can be permitted when the same could not be performed within 30 days
\nfor the reasons beyond the control of the party.\n<\/p>\n
\t25.Similarly,  in the judgment in Gowri Ammal Vs. Murugan and others
\nreported in (2006 (3) CTC 418), the Division Bench of this Court has held that
\nSections 148, 149 and 151 should be read conjointly and not in isolation.  It is
\nfurther observed in the said case that the duty of the Court is to administer
\nthe justice and in such process, the rigours of the procedural law will have to
\nbe loosened and substantive justice should be administered.  The Division Bench
\nhas further observed that the procedure law is meant to facilitate the
\nadministration of real justice and not to defeat the same.\tIn this connection,
\nit has to be borne in mind that the procedural law is a hand made of justice and
\nthe Court must always be anxious to do justice and prevent victories by way of
\ntechnical withholds.\n<\/p>\n
\t26.The mere misquoting or invoking wrong provision of law as discussed
\nearlier cannot prevent the party from getting justice. In the judgment in
\nS.Rajeswari Vs. S.N.Kulasekaran and others reported in (2006 (3) CTC 171) the
\nHon’ble Supreme Court has held that mere quoting of wrong provision in
\ndifference will not prevent the party from getting the relief sought for.
\nSimilarly, the Division Bench of this Court in the judgment reported in (2009
\n(3) CTC 97) (D.Sivakumar and another Vs. The Government of Tamil Nadu, has held
\nthat wrong quoting of the provision of law would not vitiate the proceedings.\n<\/p>\n
\t27.As held earlier, the provision of Section 149 is clear and unambiguous.
\nIt is well settled principle in law that the Court cannot read anything into
\nstatutory provision or a stipulated condition which is plain and unambiguous.
\nTherefore, the intention of the legislature is primarily to be gathered from the
\nlanguage used, which means the attention should be paid to what has been said as
\nalso what has not been said.\n<\/p>\n
\t28.Hence, the rule of interpretation did not permit the Court to interpret
\nunless the provision as it stand is meaningless or of doubtful meaning.  It is
\nalso well settled principle of law that while interpreting of provision, the
\nCourt can only interpret the law and cannot legislate.  In this connection, it
\nis useful to refer the judgment of the Supreme Court in (Union of India Vs.
\nDharmendara Textile Processors  reported in (2008 (1) CTC 53) wherein the
\nHon’ble Supreme Court has held that the plain and unambiguous meaning will have
\nto be given to the provision while interpreting it. Hence, this Court is of the
\nopinion that in view of the clear provision mentioned under Section 149 of
\nC.P.C., the Court can ‘at any stage’ permit the party to make the payment of
\ndeficit Court fee and once the said amount is paid, the same would relate back
\nto the presentation of the plaint at the first instance.   Therefore, on
\nconsideration of the above said facts, this Court is of the opinion that the
\nabove two revisions are liable to be dismissed and accordingly the same are
\ndismissed. No costs. Consequently, connected miscellaneous petition is also
\ndismissed.\n<\/p>\n
\t29.In the absence of any provision enabling issuance of notice to other
\nside, this court is of the opinion that no notice is require to be issued to the
\nproposed defendant in the suit even before numbering the plaint.  Further, when
\nan order is passed by the trial Court, allowing the payment of deficit Court
\nfee, such an order cannot be challenged by filing a revision or at the time of
\ndeciding the suit unless mala fides are established by the defendant.  In such a
\ncase, onus is heavily on the defendant to substantiate his case.  It is well
\nsettled principle of law that the persons, who alleges mala fide will have to
\nprove his case.  Therefore, this Court is of the opinion that in the absence of
\nany mala fide, the power  exercised under Section 149 of C.P.C., cannot be
\ninterfered with.  Further, the said plea being one of the fact, the same cannot
\nbe allowed to raise in the appeal, for the 1st time.\n<\/p>\n
\t30. Before concluding, it is useful to refer the judgment of the Hon’ble
\nSupreme Court in Prem Narain, Vs. Vishnu Exchange Charitable Trust and Others
\nreported in (AIR 1984 SC 1896) wherein, a strong displeasure has been expressed
\nby the Apex Court.  The Hon’ble Supreme Court has held thus:-\n<\/p>\n
\t“2.This is a mater in which the conduct of the respondents calls for
\nsevere condemnation for the reason that on a question of paltry deficit in
\npayment of court fees instead of inviting decision of issues involved in the
\ndispute by adjudication on merits, the matter has been brought to this court
\nwhich from our point of view is a criminal waste of this Court’s valuable time
\nand for which the respondents are solely responsible.  The appellant filed a
\nsuit.  He was directed to pay deficit court fees to the tune of Rs.1904\/-.  The
\nappellant asked for time to pay the deficit court-fees.  The respondents
\ncontested this request.  The learned Judge by his order dated October 23, 1981
\nrejected this very reasonable request and also rejected the prayer for extension
\nof time for depositing the deficit court fees.  The appellant carried the matter
\nby way of Civil Revision Petition No.224 of 1982 to the High Court of Delhi.
\nThe learned Judge found it difficult to interfere with the order in exercise of
\nthe revisional jurisdiction.  Hence, this appeal by special leave.\n<\/p>\n
\t3.We are satisfied that the approach of the learned trial Judge was
\nincorrect and we also find it difficult to appreciate how the High Court
\ndeclined to interfere with the very reasonable request of the appellant.  We
\naccordingly allow this appeal and grant four weeks’ time to the appellant to pay
\nthe deficit court fees.\n<\/p>\n
\t4.As the respondents contested a very reasonable request of the appellant,
\nthey seem to be revelling in litigation and therefore they should be made liable
\nto pay the costs.  Respondent No.1 shall pay Rs.500\/- to the appellant as costs
\nwithin four weeks from today.\n<\/p>\n
\t5. The appeal is disposed of accordingly.”\n<\/p>\n
\t31.The Following principles are emerged on a consideration of the various
\njudgments referred to above:-\n<\/p>\n
\t1.The power exercised by a Court under Section 149 is very wide and the
\ndiscretion shall be exercised in favour of the plaintiff in the normal
\ncircumstances.\n<\/p>\n
\t2.The power under Section 149 of C.P.C. can be exercised by the Court
\nconcerned ‘at any stage’ of the suit.\n<\/p>\n
\t3. When the Court exercises the power under Section 149 of C.P.C. before
\nnumbering the plaint, the Court is not required to issue notice to the proposed
\ndefendant in the suit, since it is a matter between the Court and the plaintiff.\n<\/p>\n
\t4.Once, the Court exercise the power under Section 149 of C.P.C., the same
\nrelates back with the presentation of the plaintiff at the first instance and
\ntherefore, the question of limitation does not arise.\n<\/p>\n
\t5.When the power is exercised by the Court on an application filed under
\nSection 151 of the Code of Civil Procedure, it is deemed to have been in
\nexercise under Section 149 of the Code of Civil Procedure.\n<\/p>\n
\t6.The Court can exercise its power under Section 149 of C.P.C. either with
\nor without an application by the party concerned.\n<\/p>\n
\t7.An order passed or deemed to have been passed under Section 149 of the
\nCode of Civil Procedure, cannot be challenged and decided in a revision or at
\nthe time of final hearing in the normal circumstances, until and unless mala
\nfide is raised and proved.\n<\/p>\n
\t8.The onus of proving lack of bonofides or mala fides is heavily on the
\nperson who alleges the same.\n<\/p>\n
\t9.The power exercised by the Court can also be challenged on the ground
\nthat the Court below has not followed the proviso to Order VII, Rule 11, of
\nC.P.C.\n<\/p>\n
\t10.The power under Order VII, Rule 11 of C.P.C. cannot be invoked when the
\nplaintiff pays the amount as per the order of the Court as directed under Order
\nVII, Rule 11 (b) and (c) of C.P.C.\n<\/p>\n
MPK<\/p>\n
To<\/p>\n
The Subordinate Judge,
\nAruppukottai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Mahalingam vs K.Krishnasamy Naidu on 14 July, 2009 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14\/07\/2009 CORAM THE HONOURABLE Mr. JUSTICE M.M.SUNDRESH C.R.P.(MD)No.1489 OF 2007 and C.R.P.(PD)(MD)No.158 OF 2008 and M.P.(MD)No.1 of 2007 1.Mahalingam .. Petitioner in CRP 1489\/07 2.Subbnuram .. Petitioner in CRP 158\/08 Vs. 1.K.Krishnasamy Naidu .. Respondent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-59095","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMahalingam vs K.Krishnasamy Naidu on 14 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahalingam-vs-k-krishnasamy-naidu-on-14-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahalingam vs K.Krishnasamy Naidu on 14 July, 2009 - 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