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1

REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NOS.      4838-4840         OF     2012   [Arising out of SLP (Civil) Nos.20349-20351 of 2007]

A. Nawab John & Ors.      ….Appellants

Versus

V.N. Subramaniyam      ….Respondent

J     U     D     G     M     E     N     T   

Chelameswar,     J.   

Leave granted.

2.  The 5 petitioners herein filed O.S.No.100 of 2004,  

against one Sengoda Gounder, who is not a party to the Special  

Leave Petition, essentially, for the specific performance of a  

registered agreement dated 22-03-1995, of sale of the suit  

scheduled land admeasuring approximately Acs.2-00 and delivery of  

possession of the same; in the alternative, it was prayed that the  

defendant be directed to refund the amount of Rs.12,15,125/- with  

interest, etc.    

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2 3. The parties are referred to in this Judgment as they are  

arrayed in the abovementioned Suit.

4. It is the case of the Plaintiffs that the abovementioned  

defendant was indebted to one Mr. Radhakrishnan and also to the  

Tamil Nadu Industrial Investment Corporation Limited (for short  

‘TNIIC”).  It is alleged in the plaint that Sengoda Gounder wanted to  

clear the debts to the abovementioned two persons before the  

property is actually conveyed to the plaintiffs.  For the said purpose,  

Sengoda Gounder collected an amount of Rs.12,15,125/- in  

instalments from the plaintiffs.  In spite of receipt of such payment,  

Sengoda Gounder did not execute the sale deed, on some pretext or  

other.  Therefore, the Suit.

5. During the pendency of the Suit, the sole respondent  

herein, filed an Application praying that he be impleaded as a party  

defendant to the said Suit, on the ground that he purchased the suit  

scheduled property on 08-03-1999 for a consideration of  

Rs.3,93,560/-.  It appears from the record that the said I.A. was  

allowed and the sole respondent herein was impleaded as the  

second defendant in the abovementioned Suit.  Consequent upon  

the said impleadment, the plaint came to be amended by inserting

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3 para 10A, the details of which are not necessary for the present  

purpose.

6. Initially, the Suit was valued at Rs.13,31,663-00 ps. on  

which the plaintiff calculated that a court-fee of Rs.99,875-75 ps. is  

payable, under Section 42 of The Tamil Nadu Court Fees and Suits  

Valuation Act, 1955” (hereinafter referred to as the ‘Tamil Nadu Act’  

for the sake of convenience).  The plaint was presented on 20-08-

1998 with deficit court-fee.  Only an amount of Rs.2,000/- was  

paid.  The plaint was returned by the Court on  

24-08-1998 with various objections including the deficiency in the  

court-fee.  The plaintiffs represented (1st representation) the plaint  

after a long delay on 03-05-2002 along with a court-fee of  

Rs.96,000/-, with an Application to condone the delay in  

representation.  On 03-06-2002, the plaint was again returned,  

inter alia, on the ground that there still was a deficit of the court-

fee.  Eventually, the plaint was represented on 22-01-2004  

(2nd representation) remitting a further amount of Rs.2,875/- court-

fee along with Applications to condone the delay in representation,  

etc.  On the same day, the plaint was once again returned with  

certain objections.  On 09-04-2004, the plaint was once again  

represented (3rd representation) with an application to condone the  

delay of 70 days in representation.  On 15-04-2004, the Suit was

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4 numbered as O.S.No.100 of 2004 by the Court.  On 05-10-2004,  

Sengoda Gounder was set ex parte.  On the same day, however,  

the sole respondent herein filed implead-petition in I.A.No.1532 of  

2004, which was allowed by an order dated 09-03-2005.

7. The respondent herein filed C.R.P.(PD) No.658 of 2006,  

before the High Court of Madras, challenging the decision of the  

Trial Court in I.A.No.76 of 2004 to condone the delay of 1328 days  

in the first of the abovementioned three representations of the  

plaint.  Another C.R.P.(PD) No.657 of 2006 was filed challenging the  

order of the Trial Court I.A.No.75 of 2004, dated 22-01-2004, by  

which, the Trial Court condoned the delay of 585 days in the second  

of the abovementioned representations.

8. During the pendency of the abovementioned two  

C.R.Ps., the 2nd defendant (sole respondent herein) filed his written  

statement and also filed Application in I.A.No.3 of 2006, invoking  

Order-7 Rule-11 of the Code of Civil Procedure to reject the plaint.  

A week thereafter, on 29-12-2005, the plaintiffs filed I.A.No.1 of  

2006, seeking amendment of the plaint.

9. I.A.No.1 of 2006 filed by the plaintiffs was allowed by  

an order dated 16-02-2006.  Aggrieved by the same, the sole

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5 respondent carried the matter in Revision to the High Court in  

C.R.P.(PD) No.769 of 2006, which was dismissed by an order dated  

25-04-2006.  I.A.No.3 of 2006 filed by the 2nd defendant/  

respondent herein, was dismissed by an order dated 31-03-2006,  

and a Revision in C.R.P.(PD)No.797 of 2006, filed challenging the  

same.          

10. Eventually, in C.R.P.(PD)No.797 of 2006 along with  

C.R.P.Nos.658 & 657 of 2006, were heard together and allowed by  

the High Court by a common order dated 22-12-2006, setting aside  

the orders passed in I.A.Nos.76, 75 of 2004 and 3 of 2006. The  

operative portion of the order is as under:

“In  the  result,  all  the  three  CRPs  are  allowed.   The  numbering  of  the  suit  No.  100  of  2004  by  the  District  Court,  Erode  and  renumbering  the  same as  O.S.No.4  of  2005 on its transfer by the Additional District Judge (FTC- IV), Erode at Bhavani is set aside the consequently the trial  Court is directed to struck off the said suit from its file.”

Hence, the S.L.P.

11. Initially, the Suit was presented before the Sub-Court,  

Bhavani, but finally represented (3rd representation) to the District  

Court, Erode, due to the change brought about in the pecuniary  

jurisdiction of the Civil Courts by Tamil Nadu Act No.1 of 2004,  

which came into force w.e.f., 29-12-2003 and numbered as

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6 O.S.No.100 of 2004.  Subsequently, the same was transferred to  

Additional  District Court (FTC-IV), Bhavani and renumbered as  

O.S.No.4 of 2005.  The initial presentation and the 1st two  

representations, mentioned earlier, of the Suit were to the Sub  

Court, Bhavani, and the final representation was to the District  

Court, Erode.  The delay in representation, on the 1st two occasions,  

was condoned by the Sub Court, Bhavani.  

12. The 2nd defendant made the following submissions  

before the High Court and before us also:

(1) that the Sub Court, Bhavani lacked  

jurisdiction to consider and order the 1st of the  

two delay condonation petitions (I.A.Nos. 76  

and 75 of 2004) in view of the fact that there  

was no Suit pending, in the eye of law, before  

the Sub Court as on 22-01-2004 (the date on  

which the abovementioned IAs were allowed)  

because of the Amendment to the Civil Courts  

Act;

(2) the plaintiffs did not invoke Section 149 of  

the Code, while seeking the condonation of  

delay in representing the plaint and making

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7 good the deficit court-fee, therefore, the plaint  

ought to have been rejected;   

(3) The delay in representation was condoned  

without notice to the defendant.  In view of the  

decision of the High Court of Madras in K.  

Natarajan v. P.K. Rajasekaran, (2003) 2 M.L.J.  

305, such a procedure, when the court fee is  

paid beyond the period of limitation for filing  

the Suit, is illegal; and

(4) the Trial Court mechanically condoned the  

delay without appreciating the legal position  

that, condonation of a huge delay without any  

proper explanation is uncalled for and militates  

against the provisions of the C.P.C.       

13. Whereas the plaintiffs argued before the High Court;

(1) that the 2nd defendant is a purchaser  

pendente lite (plaint initially presented on 20-

08-1998 and the 2nd defendant, admittedly,  

purchased the suit scheduled property on 08-

03-1999) and, therefore, has no locus standi to  

contest the suit in view of the fact that the 1st  

defendant chose not to contest the suit;

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8 (2) the sale in favour of the 2nd defendant is  

sham and nominal; and

(3) payment of court-fee is purely a matter  

between the State and the plaintiffs and,  

therefore, the 2nd defendant has no locus to  

raise any objection on that count.     

14. In order to examine the correctness of the High Court’s  

findings, two preliminary questions / objections raised by the  

plaintiffs regarding the locus standi of the 2nd defendant to maintain  

the three Civil Revision Petitions, which were disposed of by the  

common Judgment under challenge, is required to be examined  

first.

15. The first preliminary objection is that the 2nd defendant,  

being a pendente lite purchaser, has no locus standi to question the  

correctness of the decision of the Trial Court to condone the delay in  

representation of the plaint.  To understand the legal rights and  

obligations of a pendente lite purchaser, it is necessary to examine  

the jurisprudential background of the doctrine of lis pendens and its  

statutory expression.

16. This Court in Jayaram Mudaliar v. Ayyaswami and  

Others, (1972) 2 SCC 200 (paras 42 to 44) quoted with approval a

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9 passage from the Commentaries on the Laws of Scotland, by Bell,  

which explains the doctrine of lis pendens:

“43. …………..  Bell, in his commentaries on the Laws of  Scotland,  said  that  it  was  grounded  on  the  maxim  :  “Pendent elite nibil innovandum”.  He observed:

“It  is  a  general  rule  which  seems to  have  been  recognised  in  all  regular  systems  of  jurisprudence,  that  during  the  pendence  of  an action, of which the object is to vest the  property  or  obtain  the  possession  of  real  estate, a purchaser shall be held to take that  estate  as  it  stands  in  the  person  of  the  seller, and to be bound by the claims which  shall ultimately be pronounced.”

Section 52∗ of the Transfer of Property Act, (for short ‘the T.P.Act’)  

incorporates doctrine of lis pendens and it stipulates that during the  

pendency of any suit or proceeding in which any right to immovable  

property is, directly or specifically, in question, the property, which  

is the subject matter of such suit or proceeding cannot be  

“transferred or otherwise dealt with”, so as to affect the rights of  

 Section 52 of the Transfer of Property Act  “52. Transfer of property pending suit relating thereto.—During the pendency in any  

court having authority within the limits of India excluding the State of Jammu and Kashmir or  established beyond such limits by the Central Government of any suit or proceeding which is not  collusive and in which any right to immovable property is directly and specifically in question, the  property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as  to affect the rights of any other party thereto under the decree or order which may be made therein,   except under the authority of the court and on such terms as it may impose.

Explanation.—For the purposes of this section, the pendency of a suit or proceeding  shall be deemed to commence from the date of the presentation of the plaint or the institution of  the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has  been disposed of by a final decree or order and complete satisfaction or discharge of such decree  or order has been obtained, or has become unobtainable by reason of the expiration of any period  of limitation prescribed for the execution thereof by any law for the time being in force.”

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10 any other party to such a suit or proceeding.  The Section is based  

on the principle:

“………..that it would plainly be impossible that any action  or  suit  could  be  brought  to  a  successful  termination,  if  alienations  pendente  lite were  permitted  to  prevail.   The  plaintiff would be liable in every case to be defeated by the  defendant’s  alienating  before  the  judgment  or  decree,  and  would  be  driven  to  commence  his  proceedings  de  novo,  subject to be defeated by the some course of proceeding.”

Belkamy v. Subina (1857) De. GEJ 566 at 588.

Quoted with approval by this Court in Vinod Seth v. Devinder Bajaj  

(2010)8 SCC 1.

17. It is settled legal position that the effect of Section 52 is  

not to render transfers affected during the pendency of a suit by a  

party to the suit void; but only to render such transfers subservient  

to the rights of the parties to such suit, as may be, eventually,  

determined in the suit.  In other words, the transfer remains valid  

subject, of course, to the result of the suit.  The pendente lite  

purchaser would be entitled to or suffer the same legal rights and  

obligations of his vendor as may be eventually determined by the  

Court.    

“The mere pendency of a suit does not prevent one of the parties  from dealing with the property constituting the subject-matter of  the suit. The section only postulates a condition that the alienation  will  in no manner affect the rights of the other party under any  decree which may be passed in the suit unless the property was  alienated with the permission of the court.”

[Sanjay Verma v. Manik Roy, AIR 2007 SC 1332,  para 12]

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18. Such being the scope of Section 52, two questions  

arise: whether a pendente lite purchaser (1) is entitled to be  

impleaded as a party to the suit; (2) once impleaded what are the  

grounds  on which he is entitled to contest the suit.   

19.           This Court on more than one occasion held that when a  

pendente lite purchaser seeks to implead himself as a party -  

defendant to the suit, such application should be liberally  

considered.  This Court also held in Smt. Saila Bala Dassi v. Smt.  

Nirmala Sundari Dassi and Another, AIR 1958 SC 394, that, “justice  

requires”, a pendente lite purchaser “should be given an opportunity  

to protect his rights”.  It was a case, where the property in dispute  

had been mortgaged by one of the respondents to another  

respondent.  The mortgagee filed a suit, obtained a decree and  

‘commenced proceedings for sale of the mortgaged property’.  The  

appellant Saila Bala, who purchased the property from the  

judgment-debtor subsequent to the decree sought to implead  

herself in the execution proceedings and resist the execution.  That  

application was opposed on various counts.  This Court opined that  

Saila Bala was entitled (under Section 146 of the C.P.C.) to be  

brought on record to defend her interest because, as a purchaser  

pendent elite, she would be bound by the decree against her

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12 vendor.  There is some divergence of opinion regarding the  

question, whether a 12pendent elite purchaser is entitled, as a  

matter of right, to get impleaded in the suit, this Court in (2005) 11  

SCC 403, held that :

“Further pending the suit,  the transferee is not entitled  as of right to be made a party to the suit, though the court  has a discretion to make him a party. But the transferee  endent elite can be added as a proper party if his interest in  the  subject-matter  of  the  suit  is  substantial  and  not  just  peripheral.  A transferee  12endent elite to the extent he has  acquired interest  from the defendant  is vitally interested in  the litigation, where the transfer is of the entire interest of the  defendant; the latter having no more interest in the property  may not properly defend the suit. He may collude with the  plaintiff. Hence, though the plaintiff is under no obligation to  make a  lis pendens transferee a party, under Order 22 Rule  10  an  alienee  12endent elite may  be  joined  as  party.  As  already noticed, the court has discretion in the matter which  must be judicially exercised and an alienee would ordinarily  be joined as a party to enable him to protect his interests. The  court  has  held  that  a  transferee  12endent elite of  an  interest  in  immovable  property  is  a  representative-in- interest  of  the  party  from whom he  has  acquired  that  interest. He is entitled to be impleaded in the suit or other  proceedings  where  his predecessor-in-interest  is  made  a  party  to  the  litigation;  he is  entitled  to  be  heard  in  the  matter on the merits of the case.”

[Emphasis supplied]

The preponderance of opinion of this Court is that  a pendente lite  

purchaser’s application  for impleadment should normally be  

allowed or “considered liberally”.  

20. That the question of court fee is a matter between the plaintiff  

and the Court is a principle which has been followed for a long time.

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13 The Madras High Court in SL Lakshmana Ayyar vs. TSPLP  

Palaniappa Chettiar, AIR 1935 Mad.927 held “ under the prevailing  

usage, the court fully goes into the question relating to the Court  

fee, only upon an objection taken in the written statement by the  

defendant, but as the judicial committee  points out in 36 M.L.1437  

the Court fees Act was passed not to arm a litigant with a weapon  

of technicality against his opponent, and from that view it follows,  

that although in actual practice a defendant is permitted to object  

that the proper Court fee has not been paid, he has, strictly  

speaking, no legal right to raise such a plea, but his function must  

be deemed to be, subject to the court’s leave, merely  to assist in it  

coming to a proper decision.”

Though this judgment does not refer to any statutory provisions,  

Section 12 of the Court Fees Act, 1870 supports this view.  Sub  

section 1 gives finality to the decision of the trial court on the  

questions relating to valuation.

“ (1) Every question relating to valuation for the purpose of  determining the amount of any fee chargeable under this  Chapter on a plaint or memorandum of appeal, shall be decided  by the Court in which such plaint or memorandum, as the case  may be, is filed, and such decision shall be final as between the  parties to the suit”.

Sub-Section 2 however provides that the appellate or revisional  

Court can direct the deficiency to be made good if it comes to the  

conclusion that the lower court had decided the issue to the  

detriment of the revenue.

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14 (2) “But whenever any such suit comes before  a Court of  appeal, reference or revision, if such Court considers  that the  said question has been wrongly decided, to the detriment of the  revenue, it shall require the party by whom such fee has been  paid to pay so much additional fee as would have been payable  had the question been rightly decided, and the provisions of  section 10, paragraph (ii), shall apply.”

In view of the finality attached under sub-section (1) to the decision  

of the trial court and the time of the limited scope of the appellate  

court’s power to examine whether the lower court wrongly decided  

the question to the detriment of the revenue, the conclusion  

obviously is inevitable the defendant has no right to file a revision  

petition against the decision of the trial court.

21. However the position under the Madras Court fees act, 1955  

is different. Section 12(2) expressly provides for the defendant’s  

right to raise the question of the court fees:-  

“(2) Any defendant may, by his written statement filed  before the first hearing of the suit or before evidence is recorded  on the merits of the claim but, subject to the next succeeding  sub-section, not later, plead that the subject matter of the  suit has not been properly valued or that the fee paid is  not sufficient.  All questions  arising on such pleas shall be  heard and decided before evidence is recorded affecting such  defendant, on the merits of the claim.  If the Court decides that  the subject-matter of the suit has not been properly valued or  that the fee paid is not sufficient, the Court shall fix a date  before which  the plaint shall be amended in accordance with the  Court’s decision and the deficit fee shall be paid.  If the plaint be  not amended or if the deficit fee be not paid within the time  allowed, the plaint shall be rejected and the Court shall pass  such order as it deems just regarding costs of the suit.”

[Emphasis supplied]

Section 12(4)(a) provides that even the appellate Court can go into  

the question of the correctness of the decision of the lower court

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15 (rendered under Section 12(2)) either on its own motion or on the  

application of any of the parties. (obviously including the  

defendants)

(4)(a)Whenever  a case comes up before a Court of  Appeal, it shall be lawful for the Court, either of its own  motion or on the application of any of the parties, to  consider the correctness of any order passed by the lower  Court affecting the fee payable  on the plaint or in any  other proceeding in the lower Court and determine the  proper fee payable thereon.

Explanation.—A case shall be deemed to come before3 a  Court of appeal even if  the appeal relates only to a part  of the subject matter of the suit.

[Emphasis supplied]

If the Court comes to the conclusion that the court fee paid in the  

lower court is not sufficient, the court shall require the party to  

make good the deficiency.  

“(b) If the Court of Appeal decides that the fee paid in the  lower Court is not sufficient, the Court shall require the  party liable to pay the deficit fee within such time as may  be fixed by it.”

However,  this Court in Rathnavarma Raja v. Smt. Vimala AIR 1961  

SC 1299 held:-

“2. The Court Fees Act was enacted to collect revenue  for the benefit of the State and not to arm a contesting  party with a weapon of defence to obstruct the trial of an  action. By recognising that the defendant was entitled to  contest the valuation of the properties in dispute as if it were a  matter in issue between him and the plaintiff and by entertaining  petitions preferred by the defendant to the High Court in  exercise of its revisional jurisdiction against the order adjudging  court fee payable on the plaint, all progress in the suit for the  trial of the dispute on the merits has been effectively frustrated  for nearly five years. We fail to appreciate what grievance the  defendant can make by seeking to invoke the revisional  jurisdiction of the High Court on the question whether the  plaintiff has paid adequate court fee on his plaint. Whether  proper court fee is paid on a plaint is primarily a question  between the plaintiff and the State. How by an order relating  to the adequacy of the court fee paid by the plaintiff, the

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16 defendant may feel aggrieved, it is difficult to appreciate. Again,  the jurisdiction in revision exercised by the High Court under  Section 115 of the Code of Civil Procedure is strictly conditioned  by clauses (a) to (c) thereof and may be invoked on the ground  of refusal to exercise jurisdiction vested in the Subordinate Court  or assumption of jurisdiction which the court does not possess or  on the ground that the court has acted illegally or with material  irregularity in the exercise of its jurisdiction. The defendant who  may believe and even honestly that proper court fee has not  been paid by the plaintiff has still no right to move the superior  courts by appeal or in revision against the order adjudging  payment of court fee payable on the plaint. But counsel for the  defendant says that by Act 14 of 1955 enacted by the Madras  Legislature which applied to the suit in question, the defendant  has been invested with a right not only to contest in the trial  court the issue whether adequate court fee has been paid by the  plaintiff, but also to move the High Court in revision if an order  contrary to his submission is passed by the court. Reliance in  support of that contention is placed upon sub-section (2) of  Section 12. That sub-section, insofar as it is material, provides:

3. But this section only enables the defendant to raise  a contention as to the proper court fee payable on a plaint  and to assist the court in arriving at a just decision on  that question. Our attention has not been invited to any  provision of the Madras Court Fees Act or any other statute  which enables the defendant to move the High Court in revision  against the decision of the Court of first instance on the matter  of court fee payable in a plaint. The Act, it is true by Section 19,  provides that for the purpose of deciding whether the subject- matter of the suit or other proceeding has been properly valued  or whether the fee paid is sufficient, the court may hold such  enquiry as it considers proper and issue a commission to any  other person directing him to make such local or other  investigation as may be necessary and report thereon. The  anxiety of the Legislature to collect court fee due from the  litigant is manifest from the detailed provisions made in Chapter  Ill of the Act, but those provisions do not arm the defendant with  a weapon of technicality to obstruct the progress of the suit by  approaching the High Court in revision against an order  determining the court fee payable.”

[Emphasis supplied]

In our opinion the above conclusion is clearly supportable from the  

language of sub-section (4)( c).

(c ) If the deficit fee is not paid within the time fixed and the  default is in respect of a relief which has been dismissed by the  lower Court and which the appellant seeks in appeal, the appeal  shall be dismissed, but if the default is in respect of a relief  which has been decreed by the lower Court, the deficit fee shall  be recoverable as if it were an arrear of land revenue.”

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17 It can be seen, the sub-section (c) provides for the dismissal of  

only the appeal in case of the failure to make good the deficit of  

Court fee if the same pertains to that portion of the decree  by  

which a portion of the plaintiff’s claim stood dismissed by the trial  

court.  However in the case of the default in making good portion of  

the court fee pertaining decree in favour of the plaintiff, the Section  

only mandates the recovery of the  amount by resort to the  

Revenue Recovery Act but does not command the Suit to be  

dismissed.   Obviously the legislature did not intend to give any  

advantage to the defendants on account of the payment of the  

inadequate Court fee by the plaintiffs.

22. Therefore the law is clear that though a defendant is entitled  

under the Tamil Nadu Act to bring it to the notice of the Court that  

the amount of court fee paid by the plaintiff is not in accordance  

with law, the defendant cannot succeed in the suit only on that  

count.  But the dispute of the 2nd defendant is not regarding the  

amount of the court fee but the acceptance of the court fee after  

the expiry of the period of limitation applicable to the suit.

23.  The next question that is required to be examined is that if  

appropriate court fee is not paid at the time of the filing of the  

plaint, can the suit be said to be a valid suit in the eye of law.  A

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18 further question arising out of the above is – what is the effect of  

the payment of appropriate court fee subsequent to the expiry of  

the period of limitation prescribed by law for the filing of a suit in a  

case where the plaint is filed within the period of limitation  

applicable to such case. Ancillary to the above question is the  

question whether, in such a case, the defendant is entitled to notice  

before the Court accepts the payment of the deficit Court fee.   

24. The law relating to the valuation of the suits and the payment  

of court fees in the State of Tamil Nadu is “The Tamil Nadu Court  

Fees and Suits Valuation Act, 1955”. By Section 87 of the said Act,  

two enactments known as The Court Fees Act 1870 and The Suits  

Valuation Act 1887 (which governed the field of the valuation of  

suits and payment of court fees) are repealed.    It may not be  

either necessary or profitable to go into the scheme of the repealed  

enactments except to take note of the historical fact for certain  

limited purpose.

25. The Tamil Nadu Act prescribes the method and manner of the  

determination of valuation of the suits and the appropriate court fee  

payable with reference to various kinds of suits and appeals etc.  

Section 4 of the Act stipulates that no document which is  

chargeable with a fee under the said Act shall be acted on by any

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19 court or any public office unless the appropriate fee payable under  

the Act (Court fee) in respect of such a document is paid.

“4. Levy of fee in Courts and public offices

No document which is chargeable with fee under this Act shall --

(i) be filed, exhibited or recorded in, or be acted on or furnished  by, any Court including the High Court, or

(ii) be filed,  exhibited  or  recorded in  any public  office,  or be  acted on or furnished by any public officer, unless in  respect  of  such document  there  be  paid a  fee  of  an  amount not less than that indicated as chargeable under this Act:

Provided that,  whenever  the filing or exhibition in a Criminal  Court of a document in respect of which the proper fee has not  been paid is in the opinion of the Court necessary to prevent a  failure  of  justice,  nothing  contained  in  this  section  shall  be  deemed to prohibit such filing or exhibition.”

26. Section 5 stipulates when a document on which court fee is  

payable is received in any court or public office, though the whole or  

any part of the appropriate court fee payable on such document has  

not been paid, either because of a mistake or inadvertence of the  

Court, the Court, in its discretion, may allow the payment of the  

deficit court fee within such time as may be fixed.  Section 5 further  

declares that upon such payment, such document “shall have the  

same force and effect” as if the court fee had been paid in the first  

instance.  Indisputably, the expression “document” appearing under  

Section 4 and 5 takes within its sweep a plaint contemplated under  

the Code of Civil Procedure (hereinafter ‘the Code’  for short).  It

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20 may be pertinent to mention that under Section 281 of the Court  

Fees Act 1870, it is categorically declared that “no document which  

ought to bear a stamp under this Act shall be of any validity unless  

and until it is properly stamped”.  However, it is further provided in  

the same Section that a Court may permit the payment of  

appropriate court fee in its discretion and if the deficit is made good  

“every proceeding relative thereto shall be as valid as if it had been  

properly stamped in the first instance”.  The language of the Tamil  

Nadu Act is different.  Though Section 4 declares no document in  

respect to which court fee is required to be paid under the Act but  

not paid shall be acted upon, it does not declare the document to be  

without any validity.

27. Order VII Rule 11 CPC requires a plaint to be rejected, inter  

alia, where the relief claimed is undervalued and/or the plaint is  

written on a paper insufficiently stamped, and, in either case, the  

plaintiff fails to either correct the valuation and/or pay the requisite  

court fee by supplying the stamp paper within the time fixed by the  

court. Rule 13 categorically declares that the rejection of a plaint  

1 28.  Stamping documents inadvertently received – No document which ought to bear a stamp  under this Act shall be of any validity unless and until it is properly stamped.

        But, if any such document is through mistake or inadvertence received, filed or used in  any Court or office without being properly stamped, the Presiding Judge or the head of the office, as  the case may be, or, in the case of a High Corut, any Judge of such Court, may, if he thinks fit, order  that such document be stamped as he may direct; and, on such document being stamped accordingly,  the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in  the first instance.

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21 shall not of its own force preclude the plaintiff from presenting a  

fresh plaint in respect of the same cause of action.  However,  

Section 149 of the Code stipulates as follows:

“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.”

It can be seen from the language of Section 149, it does not deal  

only with court fees payable on a plaint.  The said Section also deals  

with every document with respect to which court fee is required to  

be paid under the appropriate law.  It may be further mentioned  

that Order VIII of the Code provides for set-off and counter claims  

under Rule 6 and 6A.  Under Section 8 of the Tamil Nadu Act, it is  

declared that “a written statement pleading a set-off or counter  

claim shall be chargeable with fee in the same manner as a plaint”.  

Therefore, when Section 149 of the Code speaks about a document  

with respect to which court fee is required to be paid, it takes within  

its sweep not only plaints but various other documents with respect  

to which court fee is required to be paid under the appropriate law  

including written statements in a suit.

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22 28. Therefore, from the language of Section 149 CPC it follows  

that when a plaint is presented to a Court without the payment of  

appropriate court fee payable thereon, undoubtedly the Court has  

the authority to call upon the plaintiff to make payment of the  

necessary court fee.  Such an authority of the Court can be  

exercised at any stage of the suit.  It, therefore, appears to us  

that any amount of lapse of time does not fetter the authority of the  

Court to direct the payment of such deficit court fee. As a logical  

corollary, even the plaintiff cannot be said to be barred from paying  

the deficit court fee because of the lapse of time.

29. This Court in AIR 1971 SC 1374-  Mannan Lal  v. Mst.  

Chhotka Bibi (dead) by Lrs. & Ors.  interpreting Sec. 149 CPC held:-

“The above section therefore mitigates the rigour of Section 4  of the Court Fees Act and it is for the Court in its discretion to allow a  person who has filed a memorandum of appeal with deficient court-fee  to make good the deficiency and the making good of  such deficiency  cures the defect in the memorandum not from the time when it is made  but from the time when it was first presented in Court.

In  our  view  in  considering  the  question  as  to  the  maintainability of an appeal when the Court fee paid was insufficient  to start with but the deficiency is made good later on the provisions of  the Court Fees Act and the Code of Civil Procedure have to be read  together to form a harmonious  whole and no effect should be made to  give precedence to provisions in one over  those of the other unless the  express words of a statute clearly override those of the other.

It was further held at para 14:-

“There can  in our opinion be no doubt that Sec.4 of the Court Fees  Act is not the last word on the subject and the Court must consider the  provisions of both the Act and the Code to harmonise the two sets of  provisions which can only be done by reading Section 149 as a proviso  to Section 4 of the Court Fees Act by allowing the deficiency to be  made good within a period of time fixed by it.  If the deficiency is  made good no possible objection can be raised on the ground of the

Page 23

23 bar of limitation: the memorandum of appeal must be  treated  as  one filed within the period fixed by the Limitation Act  subject to  any express provision to the contrary in that Act and the appeal must   be treated as pending from the date when the memorandum of appeal  was presented in court.  In our view it must be treated as pending from  the date of presentation not only for the purpose of limitation but also  for the purpose of sufficiency as to court-fee under Section 149 of the  Code.”

[Emphasis supplied]

30. It was a case where by an Act of the U.P. Legislature the  

appellate jurisdiction provided under the Letters Patent  of Her  

Majesty dated 17th March, 1866 was abolished.  However, Sec.3 of  

the U.P. Act saved the pending Letters Patent appeals.  The  

question before this Court was whether Letters Patent appeal  

presented to the Allahabad High Court prior to the commencement  

of the Abolition Act but without affixing appropriate court fees  

stamp can be said to be a pending appeal.  This Court on a  

consideration of  the relevant provisions of the law and also the  

decisions of the Madras High Court in Gavaranga Sahu Vs.  

Batakrishna Patro, (1909) ILR 32  Mad 305 (FB) and Faizullah Vs.  

Mauladad, AIR 1929 PC 147 reached the conclusion that  such an  

appeal was a ‘pending appeal’ for the purpose of the  Abolition Act.

31. We may mention here that the subject matter of dispute in  

the above mentioned case was a Letters Patent Appeal. However,  

the Full Bench decision of the Madras High Court, quoted with  

approval by this Court (supra), dealt with  the question whether the

Page 24

24 payment of deficit in court fee beyond the period of limitation  

prescribed for filing the suit  would retrospectively render the plaint  

(originally presented within the  period of limitation but with deficit  

court fee) a validly presented plaint:

“The argument advanced in that case before the Court appears to  have been to the effect that a plaint which was not sufficiently  stamped within the period of limitation was not a valid plaint at  all.  In the order of reference the law on the subject was set forth  in some detail  and the learned referring Judge opined that  an  insufficiently stamped plaint did not become a new plaint when  the  deficiency  was  supplied.  The  learned  Judges  of  the  Full  Bench fully agreed with the view taken in the order of reference  and with the reasons upon which it was based and merely added  that Section 149 of the Civil Procedure Code  of 1908 was in  accordance with this view.”

In substance, the Full Bench Madras High Court held that such a  

plaint would be a validly presented plaint.  This Court approved the  

said decision.   

32. The question whether there is a deficit of court fee paid with  

respect to a plaint depends on two factors: (1) the valuation of the  

suit, and (2) the determination of the appropriate court fee payable  

thereupon.  There can occur an error (either advertently or  

otherwise), on either of the abovementioned counts.  Under Section  

12(1) of the Tamil Nadu Act (which is relevant for our purpose),  

primarily it is the obligation of the Court to examine all the relevant  

material and determine whether the proper fee payable on the

Page 25

25 plaint is paid or not.  As already noticed, under Section 12(2)2 of  

the Tamil Nadu Act, the defendant can also raise objections to  

either the valuation of the suit or the determination of the court fee  

payable.  The determination of the accuracy of the valuation of the  

suit and/or the appropriate court fee payable thereon, in either of  

the contingencies mentioned above, is required to be made by the  

Court.  If the Court reaches the conclusion that the appropriate  

court fee is not paid, the consequences stipulated in Section 12(2)  

to (4) should follow.

33. If such conclusion is reached by the trial Court, the trial  

Court is mandated to reject the plaint if the plaintiff fails to pay the  

necessary court fee even after being called upon by the trial Court –  

necessarily meaning that no adjudication on the merits of the case  

can be made.  The consequences of such a conclusion if reached by  

the appellate Court, in the course of hearing of the appeal, are  

stipulated under Section 12(4)(c), which is already taken note of  

earlier.

2 12 Decision as to proper fee in other Courts     (2) Any defendant may, by his written statement filed before the first hearing of the suit or before  

evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that  the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising  on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the  claim. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not  sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision  and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed,  the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.

Page 26

26 34. That leads us to the next question regarding the legal  

character of Section 149. Is it a provision conferring authority on  

the Court to call upon a plaintiff to make payment of court fee which  

was found to be due but short paid on the plaint or is it a provision  

conferring a right on the plaintiff to make good the deficit court fee  

at any point of time irrespective of the provisions of the law of  

limitation and other provisions and principles of law.

35. We have already noticed that under Order VII Rule 11, a  

plaint, which has not properly valued the relief claimed therein or is  

insufficiently stamped, is liable to be rejected.  However, under Rule  

13, such a rejection by itself does not preclude the plaintiff from  

presenting a fresh plaint.  It naturally follows that in a given case  

where the plaint is rejected under Order VII Rule 11 and the plaintiff  

chooses to present a fresh plaint, necessarily the question arises  

whether such a fresh plaint is within the period of limitation  

prescribed for the filing of the suit.  If it is to be found by the Court  

that such a suit is barred by limitation, once again it is required to  

be rejected under Order VII Rule 11 Clause (d).  However, Section  

149 CPC, as interpreted by this Court in Mannan Lal (supra),  

confers power on the Court to accept the payment of deficit court  

fee even beyond the period of limitation prescribed for the filing of a  

suit, if the plaint is otherwise filed within the period of limitation.

Page 27

27 Therefore, the rigour of Order VII Rule 11 CPC and also Section 4 of  

the Tamil Nadu Act is mitigated to some extent by the Parliament  

when it enacted Section 149 CPC.  We may not forget that  

Limitation is only a prescription of law; and Legislature can always  

carve out exceptions to the general rules of limitation, such as  

Section 5 of the Limitation Act which enables the Court to condone  

the delay in preferring the appeals etc.

36. This court on more than one occasion held that the  

jurisdiction under Section 149 CPC is discretionary in nature. [See  

P.K. Palanisamy Vs. N. Arumugham & Anr., (2009) 9 SCC 173 and  

(2012) 13 SCC 539]

37. It is well settled that the judicial discretion is required to be  

exercised in accordance with the settled principles of law.  It must  

not be exercised in a manner to confer an unfair advantage on one  

of the parties to the litigation.  In a case where the plaint is filed  

within the period of limitation prescribed by law but with deficit  

court fee and the plaintiff seeks to make good the deficit of the  

court fee beyond the period of limitation, the Court, though has  

discretion under Section 149 CPC, must scrutinise the explanation  

offered for the delayed payment of the deficit court fee carefully  

because exercise of such discretion would certainly have some

Page 28

28 bearing on the rights and obligations of the defendants or persons  

claiming through the defendants. (The case on hand is a classic  

example of such a situation.)  It necessarily follows from the above  

that Section 149 CPC does not confer an absolute right in favour of  

a plaintiff to pay the court fee as and when it pleases the plaintiff.  

It only enables a plaintiff to seek the indulgence of the Court to  

permit the payment of court fee at a point of time later than the  

presentation of the plaint.  The exercise of the discretion by the  

Court is conditional upon the satisfaction of the Court that the  

plaintiff offered a legally acceptable explanation for not paying the  

court fee within the period of limitation.

38. On the facts of the case on hand, the High Court recorded its  

conclusion as follows:

“………. 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.”

Such a conclusion was recorded on the basis of the finding:

“Apart from that sufficient cause was not shown in the two  affidavits  filed  in  support  of  the  application  to  condone the  delay  of  representation  in  I.A.  No.76/2004 the  reason given  was that due to non availability of stamp paper, proper court  fee could not be paid. In I.A. No.75/2004 no reason has been  stated for such deficit  court fee. Even for the delay also the  conventional  reason  of  jaundice  has  been  stated  and  the  plaintiffs alleged that they have been taking Siddha treatment  for such ailment.  Even such affidavits have been filed only by  the  counsels  and  not  by  the  parties.   But  accepting  such

Page 29

29 reasons, the delay in representation as well as the payment of  deficit court fee has been accepted by the court below.”

[Emphasis supplied]

39. We do not see any reason to take a different view than that  

are taken by the High Court.  The discretion under Section 149 was  

not exercised by the trial Court in accordance with the principles of  

law.  The appeal is, therefore, required to be dismissed on that  

count alone.  In view of such a conclusion, we do not think it  

necessary to examine the other questions raised by the 2nd  

defendant.

40. The appeal is dismissed.

………………………………….J. ( P. SATHASIVAM )

………………………………….J. ( J. CHELAMESWAR )

New Delhi; July 3, 2012.

Page 30

30 CORRIGENDUM(dated     13  th     July,     2012)   

Page NO.17, Para No.24, Line No.6-7 of para,   “FOR 'Prior to 1955  

Act of Tamil Nadu, the above mentioned two enactments'.   READ  

Stands     deleted  . And Page NO.22, Para No.30, Line No.2-3 of para  

FOR 'under the Letters Patent at Her Majest dated 17th March, 1866  

was observed'  READ 'under the Letters Patent of Her Majesty dated  

17th March, 1866 was abolished.'