Biju Davis v. Joby and Rini Joby

1 RFA No.167 of 2019 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941** ## **RFA.No.167 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OS 167/2014 DATED 28-02-2019 OF THE SUBORDINATE JUDGE,IRINJALAKUDA** ## **APPELLANT/S:** **BIJU DAVIS AGED 40 YEARS S/O ALUKKA DEVASSY,RESIDING AT NORTH CHALAKUDY DESOM,POTTA VILLAGE,CHALAKKUDY TALUK, THRISSUR DISTRICT,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ANEESH GEORGE,S/O.PYNADATH GEORGE RESIDING AT IRRIGATION QUARTERS EAST CHALAKKUDY DESOM, THRISSUR DISTRICT.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENT/S:** - **1 JOBY S/O VAILIKODOTH GEORGE,KULAYIDAM DESOM,KALLUR VADAKKUMURI VILLAGE, CHALAKUDY TALUK-680317.** **2 RINI JOBY, W/O.VAILIKODOTH JOBY,KULAYIDAM DESOM, KALLUR VADAKKUMURI DESOM,CHALAKUDY TALUK,PRESENTLY RESIDING AT ALAPPAT HOUSE,THUMBOOR PUTHENVETTOZHI HOUSE,KOTTENELLUR VILLAGE,MUKUNDAPURAM TALUK680662.** **R1 BY ADV. SMT.S.MUMTAZ** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 0212-2019 AND THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 RFA No.167 of 2019 ## **JUDGMENT** ## **C.S.DIAS, J.** The plaintiff in OS No.167/2014 on the file of the Court of the Subordinate Judge, Irinjalakkuda, is the appellant in this R.F.A. The defendants in the suit are the respondents in this appeal. 2. The appellant had filed the suit seeking a decree for specific performance of an agreement of sale or in the alternative for a decree for return of the advance amount. 3. The valuation of the plaint was Rs 62,06,170/-. The appellant paid 1/10th of the court-fee payable, at the time of institution of the suit. After formulation of the issues in the suit, the appellant was directed to pay the balance court-fee on 26.8.2016 amounting Rs 4,63,396/-. According to the appellant, he had applied for the court-fee stamp papers before the 3 RFA No.167 of 2019 District Treasury, and obtained the same, which was produced before the Court on 26.8.2016. The Court below recorded in the order sheet that the balance court-fee was paid and posted the case for steps to 20.9.2016. However, subsequently it was noticed that the court-fee stamp paper that was produced was on non-judicial stamp paper instead of judicial stamp paper. 4. The Court below returned non-judicial stamp paper to the appellant and directed him to produce judicial stamp paper on or before 19.11.2016. 5. As the mistake was committed by the District Treasury, the appellant filed WP(C)No.36821/2016 before this Court, seeking a direction to the District Collector, Thrissur to exchange the non-judical stamp paper with judicial stamp paper. This Court by judgment dated 20.12.2016, directed the District Collector to do the needful on or before 10.1.2017. Further proceedings were directed to be kept in 4 RFA No.167 of 2019 abeyance. The suit was accordingly adjourned from time to time for the production of judicial stamp paper. Also, during the period from 13.11.2017 to 20.1.2018, there was no sitting. Ultimately, the District Collector passed an order and directed the stamp paper to be exchanged. 6. The appellant produced the judicial stamp paper before the Court below on 8.2.2018. 7. During this interregnum period, the respondent filed an application to advance the hearing of the suit, to consider the maintainability of the suit, due to non-payment of balance court-fee. The court below advanced the hearing to 12.2.2018 and passed the impugned order on 28.2.2019, rejecting the plaint under Order VII Rule 11(c) of the Code of Civil Procedure (in short referred to as “Code”), on the ground that the court-fee was not paid within the stipulated time period as provided under Sec.4A of the Kerala Court Fees and Suits Valuation Act. 5 RFA No.167 of 2019 8. It is assailing the impugned order, that the present appeal is filed. 9. We have heard Sri.T.N.Manoj, the learned counsel for the appellant and Smt.Mumtaz Shumsuddin, the learned counsel for the respondent. 10. From the facts of the case, the following points emerge for consideration: (i) Whether the Court below was justified in rejecting the plaint for non-payment of balance court-fee, due to no fault of the appellant? - (ii) Whether the Courts have the discretion to accept court-fees at any stage of the suit? - (iii) Whether Sec.4A of the Kerala Court Fees and Suits Valuation Act, is directory or mandatory? 11. For the sake of convenience, the points are considered together. 12. Sec.149 of the Code of Civil Procedure reads as follows: 6 RFA No.167 of 2019 **149. Power to make up deficiency of Court-fees-** Where the whole or any part of any fee 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 fee is payable, to pay the whole or part, as the case may be, of such court-fee, and upon such payment the document, 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. (emphasis supplied) 13. Sec.149 of the Code, confers unfettered discretion on the Court to permit payment of court-fee at any stage. 14. It is an undisputed fact that the appellant submitted the court-fee stamp paper within the stipulated time period, on 26.8.2016, which was accepted by the Court. Later, the Chief-Ministerial Officer found that the stamp paper was non-judicial stamp paper and not judicial stamp paper. The nonjudicial stamp paper was returned to the appellant, with a direction to produce judicial stamp paper. 7 RFA No.167 of 2019 15. The appellant immediately approached this Court and filed WP(C) No.36821/2016; which was disposed of directing the District Collector to provide the appellant with judicial stamp paper, as was applied by him, within a period of three weeks. 16. Immediately, on the Treasury providing the appellant with the judicial stamp paper, he produced it before the Court below on 8.2.2018. It is, thereafter, that the impugned order was passed on 28.2.2019. 17. The learned counsel for the appellant contended that the impugned order passed by the Court below was erroneous and wrong. The Court below has failed to appreciate the fact that there was no willful laches or negligence on the part of the appellant. It was only because of the mistake committed by the Treasury, who provided the appellant with non-judicial stamp paper instead of judicial stamp paper, the he produced the same in Court, without understanding the difference. The learned counsel also 8 RFA No.167 of 2019 relied on the decisions in **Kathyee Cotton Mills Ltd vs R.Padmanabha Pillai [1957 KLT 1175 (FB)], Buta Singh vs Union of India (1995 KHC 909) and Nawab John vs. Subramaniyan [(2012) 7 SCC 738]** to drive his contention that the Courts have the power to enlarge or extend the original time period fixed for payment of court-fee, and if the circumstances for nonpayment of court-fee were beyond the control of the party or under unavoidable circumstances, the Court would be justified in an appropriate case to exercise its discretionary power under Sec.149, after giving due notice to the affected parties. 18. Going by the pleadings and materials on record and after verifying the order sheet of the Court below, we are convinced that the appellant paid the requisite balance court-fee within the stipulated time period as provided in Sec.4A of the Kerala Court-Fees and Suits Valuation Act. However, there was an inadvertent mistake committed by the Treasury, in handing over non-judicial stamp paper instead of 9 RFA No.167 of 2019 judicial stamp paper to the appellant, for which the appellant cannot be blamed. The Court below accepted the stamp paper, without noticing the difference. It was later that the Court below realised the mistake and returned the stamp paper to the appellant, to produce the judicial stamp paper. There was no direction to the appellant to produce the requisite stamp paper, within any time frame. The appellant diligently approached this Court, and a direction was issued to the District Collector to exchange the stamp paper. As soon as the stamp papers were received from the Treasury, the appellant produced the same before the court below on 8.2.2018. Therefore on filing of the requisite stamp paper, the appellant discharged the payment of balance court-fee. The chapter should have been closed there. 19. It is then that the respondent filed the application and the impugned order passed on 28.2.2019. 10 RFA No.167 of 2019 20. The Hon'ble Supreme Court in **P.K.Palanisamy vs. N.Arumughan and another [(2009) 9 SCC 173]** has held that payment of courtfee is a matter between the State and the suitor. If an application is to be entertained at the behest of a defendant for rejection of plaint, several aspects are required to be considered. Likewise, non-availability of court-fee stamp is a ground for extending the time for making up court-fee deficiency. 21. After re-appreciating the pleadings and documents on record and the authoritative pronouncement of the Supreme Court, we hold that the impugned order passed by the Court below is erroneous and improper. The Court below, after having accepted the court-fee on 8.2.2018, ought not to have rejected the plaint at the behest of the respondent on 28.2.2019. The Court below ought to have exercised its discretion as provided under Sec.149 of the Code, in favour of the appellant, taking into consideration the fact that there was no willful laches on the part of the 11 RFA No.167 of 2019 appellant and the mistake was committed by the Treasury. 22. In the result, (i) we allow this appeal by setting aside the order rejecting the plaint for non-payment of court-fee and restore OS No.167/2014. (ii) the parties are directed to appear before the court below on 6.1.2020, either in person or through counsel. (iii) we direct the order of attachment passed before judgment in IA No.3538/2014, attaching the property of the respondent which was subsequently vacated in view of the rejection of the plaint, but was undertaken by the counsel for the first respondent before this Court on 1.4.2019 that the property will not be alienated, shall stand revived. (iv) the Court below shall make every endeavour to dispose of the suit, as 12 RFA No.167 of 2019 expeditiously as possible., and ## (v) the parties are directed to bear their respective costs. **==> picture [343 x 218] intentionally omitted <==** **----- Start of picture text -----**<br> Sd/-<br>K.HARILAL<br>JUDGE<br>Sd/-<br>C.S.DIAS<br>JUDGE<br>sks/3.12.2019<br>**----- End of picture text -----**<br> 13 RFA No.167 of 2019 14 RFA No.167 of 2019