Holding

Section 149 CPC confers discretionary power to accept payment of a deficient court fee, but such discretion must be exercised after a satisfactory explanation for the delay; the trial court failed to do so, so the condonation is set aside and the appeal dismissed.

Summary

The appellants filed a suit for specific performance but initially paid only a deficient court fee. After multiple representations and condonation of delay, the trial court allowed the deficit fee to be paid well beyond the limitation period. The second defendant, a pendente‑lite purchaser, was impleaded and challenged the condonation. The Supreme Court examined whether a plaintiff may pay a deficient court fee after the limitation period under Section 149 of the CPC, the scope of a defendant’s right to object to court‑fee deficiency, and whether the trial court exercised its discretion properly. It held that while Section 149 permits the court to allow payment of a deficit fee, the discretion must be exercised with a proper, legally acceptable explanation for the delay, which was lacking. Consequently, the trial court’s exercise of discretion was improper and the appeal was dismissed.

Issues considered

The pendente‑lite purchaser's right to be impleaded and to contest the suit
Whether a plaint filed within the limitation period but with deficient court fee can have the deficit paid after the limitation period under Section 149 CPC
The extent of a defendant's right to raise objection to court‑fee deficiency and seek revision
Whether the trial court exercised its discretion under Section 149 CPC in accordance with law
Whether the High Court erred in allowing condonation of delay without notice to the defendant

Legislation cited

Code of Civil Procedure, 1908s. 149, s. Order 22 Rule 10, s. Order VIII, s. Order VII Rule 11, s. Order VII Rule 13
Court Fees Act, 1870s. 12(1), s. 12(2), s. 12(4), s. 28
Limitation Acts. 5
Revenue Recovery Act
Tamil Nadu Court Fees and Suits Valuation Act, 1955s. 12(2), s. 12(4)(a), s. 12(4)(c), s. 4, s. 5
Transfer of Property Act, 1882s. 52

Subjects

Court fee deficiencySection 149 CPCLimitation periodPendente lite purchaserTransfer of Property ActOrder VII Rule 11Tamil Nadu Court Fees ActJudicial discretionCondonation of delayImpleadment

Judgment

[2012] 6 S.C.R. 369

A. NAWAB JOHN & ORS. A
V.
V.N. SUBRAMANIYAM
(Civil Appeal Nos. 4838-4840 of 2012)
JULY 3, 2012
B
[P. SATHASIVAM AND J. CHELAMESWAR, JJ.)

Court Fees Act, 1870: Filing of plaint - Deficient court
fee - Right of defendant to raise objection - Held: Question
of court fee is a matter between the plaintiff and the Court - If C
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 - 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 - In a D
case where the plaint is filed within the period of limitation
prescribed by law but with deficit courtfee and the plaintiff
seeks to make good the deficit of the court fee beyond the
period of limitation, the Court, though has discretion uls. 149
CPC, must scrutinise the explanation offered for the delayed E
payment of the deficit court fee carefully because exercise of
such discretion would certainly have some bearing on the
rights and obligations of the defendants or persons claiming
through the defendants - It necessarily follows that s. 149
CPC does not confer an absolute right in favour of a plaintiff F
to pay the court fee as and when he pleases - It only enables
a plaintiff to seek. the indulgence of the' Court to permit the
payment of court fee at a point oftime later than the
presentation of the plaint - The exercise of the discretion by
the Court is conditional upon the satisfaction of the Court that G
the plaintiff offered a legally acceptable explanation for not
paying the court fee within the period af limitation - Code of
Civil Procedure, 1908 - s.149.

Code of Civil Procedure, 1908: s. 149; 0. 7, r. 11 -
369 H
370 SUPREME COURT REPORTS [2012] 6 S.C.R.

A Rejection of plaint sought on ground of deficiency of court fees
- Held: 0. 7 r. 11 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
B requisite court fee by supplying the stamp paper within the
time fixed by the court - However, s. 149 speaks about the
power to make up deficiency of court-fees - When s. 149
speaks about a document with respect to which court fee is
required to be paid, it takes within its sweep not only plaints
c 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 - Therefore, from the language of
s.149 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
0
plaintiff to make payment of the necessary court fee - Such
an authority of the Court can be exercised at any stage 'of
the suit - Therefore, 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
E cannot be said to be barred from paying the deficit court fee
because of the lapse of time - s. 149 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 -
F Limitation is only a prescription of law; and Legislature can
always carve out exceptions to the general rules of limitation,
such as s.5 of the Limitation Act which enables the Court to
condone the delay in preferring the appeals etc. - Limitation
Act - Court Fees Act, 1870.
G
Transfer of Property Act, 1882:

s. 52 - Pendente lite purchaser's application for
impleadment - Held: Should normally be allowed or
considered liberally.
H
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 371

s.52 - Effect of- Held: Effect of s.52 is not to render A
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.

Tamil Nadu Court Fees and Suits Valuation Act, 1955: B
ss. 4, 5, 12 - Held: No document which is chargeable with a
fee under the Act shall be acted on by any court or any public
office unless the appropriate fee payable under the Act in
respect of such a document is paid - When a document on
which court fee is payable is received in any court or public C
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 - Upon such payment, such D
document "shall have the same force and effect'' as if the court
fee had been paid in the first instance - Indisputably, the
expression "document" takes within its sweep a· plaint
contemplated under the Code of Civil Procedure - Court
Fees Act, 1870. E

Judicial discretion: Exercise of - Scope - Held: 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
F
one of the parties to the litigation.

In a suit for specific performance of agreement of
sale, the suit was valued at Rs.13 lacs on which the
plaintiff calculated court fee at Rs.99,875 under Section
42 of the Tamil Nadu Court Fees and Suits Valuation Act, G
1955. However, the plaint was presented on 20.08.1998
with court-fee of only Rs.2,000/-. 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 H
372 SUPREME COURT REPORTS [2012] 6 S.C.R.

A delay on 3.5.2002 along with a court-fee of Rs.96,000/-,
with an application to condone the delay in
representation. On 3.6.2002, the plaint was again returned
on the ground deficit of the court-fee. The plaint was
represented on 22.1.2004 (second representation)
B remitting a further amount of Rs.2,875/- court-fee along
with applications to condone the delay in representation.
On the same day, the plaint was once again returned with
certain objections. On 9.4.2004, the plaint was once again
represented (3rd representation) with an application to
C condone the delay of 70 days in representation.

On 15.4.2004, the suit was taken on record by the
Court. On 5.10.2004, the original defendant was set ex
parte. On the same day, an application was filed by the
sole respondent for impleadment as a party defendant to
D the said suit on the ground that he had purchased the
suit property on 8.3.1999. The trial court allowed the
impleadment application and the sole respondent
became second defendant in the suit.

E The respondent filed revision petition before the High
Court challenging the decision of the trial court to
condone the delay of 1328 days in the first of the three
representations of the plaint. Another revision petition
was filed challenging the order by which, the trial court
F condoned the delay of 585 days in the second of the
representation. During the pendency of the two revision
petitions, second defendant (sole respondent) filed his
written statement and also filed application invoking
Order 7 Rule 11, CPC for rejection of the plaint. The
application filed under Order 7 Rule 11 CPC by the
G second defendant/respondent was dismissed and a
revision was filed challenging the same. The said revision
petition and revision petition challenging the delay in
filing first two representations were heard together and
allowed by the High Court by a common order. The
H

I
'
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 373

instant appeals were filed challenging the order of the A
High Court.

Dismissing the appeals, the Court

HELD: 1. Section 52 of the Transfer of Property Act
incorporates doctrine of /is pendens and it stipulates that 8
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 any C
other party to such a suit or proceeding. 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 D
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. E
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 entitleJ to contest the
suit. This Court on more than one occasion held that F
when a pendente lite purchaser seeks to implead himself
as a party - defendant to the suit, such application should
be liberally considered. [Paras 16-19] [386-A-B; 387-8-C-
F-G]

Jayaram Muda/iar v. Ayyaswami and Others, (1972) 2 G
SCC 200: 1973 (1) SCR 139; Vinod Seth v. Devinder Bajaj
(2010)8 SCC 1; Sanjay Verma v. Manik Roy, AIR 2007 SC
1332: 2006 (10) Suppl. SCR 469 - relied on.

Be/kamy v. Subina (1857) De. GEJ 566 - referred to. H
374 SUPREME COURT REPORTS [2012] 6 S.C.R.

A 2. The question of court fee is a matter between the
plaintiff and the Court. Sub-section 1 of Section 12 of the
Court Fees Act, 1870 gives finality to the decision of the
trial court on the questions relating to valuation. Sub-
section 2 however provides that the appellate or
B 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. In
view of the finality attached under sub-section (1) to the
decision of the trial court and the time of the limited scope
c 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. However
0 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.
Section 12(4)(a) provides that even the appellate Court
can go into the question of the correctness of the
E decision of the lower court (rendered under Section 12(2))
either on its own· motion or on the application of any of
the parties. 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. The
sub-section (c) of Section 12(4) provides for the dismissal
F 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 co,urt. However in the case of the
default in making good portion of the court fee pertaining
G 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
H payment of the inadequate Court fee by the plaintiffs.
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 375

Therefore, the law is clear that though a defendant is A
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 second defendant is not regarding the B
amount of the court fee but the acceptance of the court
fee after the expiry of the period of limitation applicable
to the suit. [paras 20-22) (389-C-F-H; 390-A, C-D; 391-B-
F; 394-A-D)

Rathnavarma Raja v. Smt. Vimala AIR 1961 SC 1299:
c
1961 SCR 1015 - relied on.

SL Lakshmana Ayyar vs. TSPLP Palaniappa Chettiar
AIR 1935 Mad.927 - referred to.
D
3. 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 Court Fees Act 1870 and Suits Valuation Act E
1887 (which governed the field of the valuation of suits
and payment of court fees) were repealed. 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
F
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 court or any public office
unless the appropriate fee payable under the Act (Court
fee) in respect of such a document is paid. Section 5
stipulates when a document on which court fee is G
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 H
376 SUPREME COURT REPORTS [2012] 6 S.C.R.

A 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
B 5 takes within its sweep a plaint contemplated under the
Code of Civil Procedure. Under Section 28 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
c 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.
0
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. [Paras 24- 26] [394-
E H; 395-A-C-G-H; 396-A-E]
4. 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
F 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 shall not of its own force preclude the plaintiff from
presenting a fresh plaint in respect of the same cause of
G action. However, Section 149 of the Code talks about the
power to make up deficiency of court-fees. Section 149
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
H the appropriate law. Order VIII of the Code provides for
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 377

set-off and counter claims under Rule 6 and SA. Under A
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 B
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.Therefore, from the language
of Section 149 CPC it follows that when a plaint is c
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. Therefore, any 0
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. [Paras 27- 28] [396-E-F; 397-A-B-D-H; 398- E
A]
5. 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 F
occur an error (either advertently or otherwise), on either
of the counts. Under Section 12(1) of the Tamil Nadu Act,
primarily it is the obligation of the Court to examine all
the relevant material and determine whether the proper
fee payable on the plaint is paid or not. Under Section G
12(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 H
378 SUPREME COURT REPORTS [2012] 6 S.C.R.

A contingencies 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. If such conclusion is reached
by the trial Court, the trial Court is mandated to reject the
s 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
c of hearing of the appeal, are stipulated under Section
12(4)(c). [Paras 32-33) [400-D-F; 401-A-C)
6. 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,
D under Rule 13, such a rejection by itself does not
preclude the plaintiff from presenting a fresfl 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
E 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 confers
F 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. Therefore, the rigour of Order VII Rule
11 CPC and also Section 4 of the Tamil Nadu Act is
G mitigated to some extent by the Parliament 'when it
enacted Section 149 CPC. 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. [Para
H 35]J401-F-H; 402-A-C]
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 379

7. It !s well settled that the judicial discretion is A
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 B
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 c
exercise of such discretion would certainly have some
bearing on the rights and obligations of the defendants
or person~ claiming through the defendants. (The case
on hand is a classic example of such a situation.) It
necessarily follows that Section 149 CPC does not confer 0
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
E
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. The discretion under Section 149 was not
exercised by the trial Court in accordance with the
principles of law. [Paras 37, 39] [402-D-H; 403-A, F] F

Mannan Lal v. Mst. Chhotka Bibi (dead) by Lrs. & Ors.
AIR 1971 SC 1374: 1971 (1) SCR 253; P.K. Palanisamy v.
N. Arumugham & Anr., (2009) 9 SCC 173: 2009 (11) SCR
342 - relied on. G
K. Natarajan v. P.K. Rajasekaran, (2003) 2 M.L.J. 305;
Smt. Sai/a Bala Dassi v. Smt. Nirmala Sundari Dassi and
Another 1958 SCR 1287: AIR 1958 SC 394; Gavaranga
Sahu Vs. Batakrishna Patro, (1909) ILR 32 Mad 305 (FB);
H
380 SUPREME COURT REPORTS [2012] 6 S.C.R.

A Faizullah Vs. Mau/adad, Al.R 1929 PC 147 - referred to.

Case Law Reference:
(2003) 2 M.L.J. 305 referred to Para 12(3)

B 1973 (1) SCR 139 relied on Para 16
(1857) De. GEJ 566 referred to Para 16
c201 o) a sec 1 relied on Para16
2006 (10) Suppl. SCR 469 relied on Para 17
c
1958 SCR 1287 referred to Para 19
AIR 1935 Mad.927 referred to Para 20
1961 SCR 1015 relied on Para 21
D 1971 (1) SCR 253 referred to Para 29
(1909) ILR32 Mad 305 (FB)referred to Para 30
AIR 1929 PC 147 referred to Para 30

E 2009 (11) SCR 342 relied on Para 36

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4838-4840 of 2012.

From the Judgment & Order dated 22.12.2006 of the High
F Court of Judicature at Madras in CRP (PD) Nos. 657, 658 and
797 of 2006.

S. Gurukrishna Kumar, A. Prasanna Venkat, Srikala
Gurukrishna Kumar for the Appellants.
G R. Venkataramani, Aljo Joseph, V. Senthil Kumar, Balaji
Srinivasan for the Respondent.

The Judgment of the Court was delivered by

H CHELAMESWAR, J. 1. Leave granted.
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 381
[J. CHELAMESWAR, J.]
2. The 5 petitioners herein filed O.S.No.100 of 2004, A
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 s
prayed that the defendant be directed to refund the amount of
Rs.12,15,125/-with interest, etc.

3. The parties are referred to in this Judgment as they are
arrayed in the abovementioned Suit.
c
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 'TNllC"). It is alleged in the plaint that Sengoda Gounder
wanted to clear the debts to the abovementioned two persons D
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. E

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 F
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 para 1OA, the details of which are
not necessary for the present purpose. G

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 H
382 SUPREME COURT REPORTS (2012] 6 S.C.R.

A '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)
B 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
c (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.
0
On 15-04-2004, the Suit was 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 l.A.No.1532 of 2004, which was
allowed by an order dated 09-03-2005.
E
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 l.A.No.76 of 2004 to condone the delay of
1328 days in the first of the abovementioned three
F 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.
G 8. During the pendency of the abovementioned two
C.R.Ps., the 2nd defendant (sole respondent herein) filed ~is
written statement and also filed Application in l.A.No.3 of2006,
invoking Order-7 Rule-11 of the Code of Civil Procedure to.
reject the plaint. A week thereafter, on 29-12-2005, the plaintiffs ·
H filed l.A.No.1 of 2006, seeking amendment of the plaint.
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 383
[J. CHELAMESWAR, J.]

9. l.A.No.1 of 2006 filed by the plaintiffs was allowed by A
an order dated 16-02-2006. Aggrieved by the same, the sole
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. l.A.No.3 of 2006 filed by the 2nd defendant/
respondent herein, was dismissed by an order dated 31-03- B
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 c
allowed by the High Court by a common order dated 22-12-
2006, setting aside the orders passed in l.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, D
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."
E
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 F
of 2004, which came into force w.e.f., 29-12-2003 and
n1Jmbered as 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 G
were to the Sub Court, Bhavani, and the final representation
was to the District Court, Erode. lihe delay in representation, .
on the 1st two occasions, was condoned by the Sub Court,
Bhavani.
H
384 SUPREME COURT REPORTS [2012] 6 S.C.R.

A 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
B
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;
c (2) the plaintiffs did not invoke Section 149 of the Code,
while seeking the condonation of delay in representing the
plaint and making good the deficit court-fee, therefore, the
plaint ought to have been rejected;

D (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
E
(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.
F
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
G 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;

(2) the sale in favour of the 2nd defendant is sham and
H nominal; and
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 385
[J. CHELAMESWAR, J.]
(3) payment of court-fee is purely a matter between the A
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 I objections raised by the B
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, C
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 D
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 passage from the Commentaries on the Laws of E
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:
F
"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 G
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."

H
386 SUPREME COURT REPORTS [2012] 6 S.C.R.

A 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
s or proceeding cannot be "transferred or otherwise dealt with",
so as to affect the rights of 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
c 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
nova, subject to be defeated by the some course 5f
c proceeding."

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

E * 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
F property cannot be transferred or otherwise dealt with by any party to the
suit or proceeding so as to affect the rights of any 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 deemed to commence
G from the date of the presentation of the plaint or the institution of the
proceeding in a court of compentent jurisdiction, and to continue until the
suit proceeding has been disposed of by a final decree or order and
complete satisfication or discharge of such decree or order has been
obtained, or has become unobtainable by reason of the expiration of ahy
period of limitation prescribed for the execution thereof by any law for the
H time being in force."
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 387
[J. CHELAMESWAR, J.]
Quoted with approval by this Court in Vinod Seth v. Devinder A
Bajaj (2010)8 sec 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
8
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. C

"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 o
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 E
12]

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. F

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. G
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, H
388 SUPREME COURT REPORTS [2012] 6 S.C.R.

A 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
.B 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
vendor. There is some divergence of opinion regarding the
c question, whether a 28pendent elite purchaser is entitled, as a
matter of right, to get impleaded in the suit, this Court in (2005)
11 sec 403, held that :

"Further pending the suit, the transferee is not
entitled as of right to be made a party to the suit, though
D 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 endent elite to the
extent he has acquired interest from the defendant is vitally
E 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 /is pendens transferee a party,
F under Order 22 Rule 10 an alienee endent 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
G a transferee endent 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
H
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 389
[J. CHELAMESWAR, J.]
is entitled to be heard in the matter on the merits of the A
case."

[Emphasis supplied]

The preponderance of opinion of this Court is that a pendente
lite purchaser's application for impleadment should normally be B
· 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. The Madras High Court in SL Lakshmana c
Ayyar vs. TSPLP Palaniappa Chettiar, AIR 1935 Mad.927
held " under the prevailing 1;1sage, 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 0
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
E
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 F
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 G
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 H
390 SUPREME COURT REPORTS [2012] 6 S.C.R.

A the conclusion that the lower court had decided the issue to the
detriment of the revenue.

(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
8
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."

C In view of th.e 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
D 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:-

E "(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
F 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
G 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 sh~ll 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
H
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 391
[J. CHELAMESWAR, J.]
pass such order as it deems just regarding costs of the A
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 B
court (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 c
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 o
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.
E
[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.
F
"(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."
G
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
H
392 SUPREME COURT REPORTS [2012] 6 S.C.R.

A 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 hetween him and the plaintiff and
by entertaining petitions preferred by the defendant to the
B 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
c 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
D
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 th~ ground of refusal to exercise jurisdiction
E 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
F 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
G 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
H of that contention is placed upon sub-section (2) of Section
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 393
[J. CHELAMESWAR, J.]
12. That sub-section, insofar as it is material, provides: A

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
8
invited to any provision of the Madras Court Fees Act or
any othei\statute which enables the defendhnt to move the
High Court in revision against the decisionjof the Court of
first instance on the matter of court fee pa~ble 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 C
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 co~mission to any
other person directing him to make sua:h local or other
investigation as may be necessary and report thereon. The D
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 E
revision against an order determining the court fee
payable."

[Emphasis supplied]

In our opinion the above conclusion is clearly supportable from F
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 G
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."
H
394 SUPREME COURT REPORTS [2012] f3 S.C.R.

A 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
B 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
C 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
D 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.
E
23. The next question that is required to be examined is
that if appropriate court fee is not paid at the time of tne filing
of the plaint, can the suit be said to be a valid suit in the eye of
law. A further question arising out of the above is - what is the
effect of the payment of appropriate court fee subsequent to
F 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
G 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
H 87 of the said Act, two enactments known as The Court Fees
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 395
[J. CHELAMESWAR, J.]
Act 1870 and The Suits Valuation Act 1887 (which governed A
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.
B
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 C
acted on by any 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
D
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
E
(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:
F
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 G
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 H
396 SUPREME COURT REPORTS [2012] 6 S.C.R.

A 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.
B 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 may be pertinent to mention that under Section 28 1 of
the Court Fees Act 1870, it is categorically declared that "no
c 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
0
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
E 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
F the requisite court fee by supplying the stamp paper within the
time fixed by the court. Rule 13 categorically declares that the

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.
G 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 Court, 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.
H
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 397
[J. CHELAMESWAR, J.]
rejection of a plaint shall not of its own force preclude the A
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
B
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 C
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."
D
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- E
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 F
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.

28. Therefore, from the language of Section 149 CPC it G
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, H
398 SUPREME COURT REPORTS [2012] 6 S.C.R.

A 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.
B
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
c 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
D 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
E
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
F 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
G
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
H
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 399
[J. CHELAMESWAR, J.]
deficiency is made good no possible objection can be A
raised on the ground of the 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 B
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." c
[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, D
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 E
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 Faizul/ah Vs. Mauladad, AIR 1929 PC 147
reached the conclusion that such an appeal was a 'pending F
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 G
question whether the 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: H
400 SUPREME COURT REPORTS [2012] 6 S.C.R.

"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
B 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
c 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.
D 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
E 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 plaint is paid or not. As
already noticed, under Section 12(2)2 of the Tamil Nadu Act,
F
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
G sufficient. All questions arising on such pleas shall be heard and decided
before evidence 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
H Court shall pass such order as it deems just regarding costs of the suit.
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 401
[J. CHELAMESWAR, J.]
the defendant can also raise objections to either the valuation A
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 B
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 C
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. D
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 E
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,
F
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, G
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
H
402 SUPREME COURT REPORTS [2012) 6 S.C.R.

A 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.
B 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
c 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.
D [See P.K. Pa/anisamy Vs. N. Arumugham & Anr., (2009) 9
sec 173 and (2012) 13 sec 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
E 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
F scrutinise the explanation offered for the· delayed payment of
the deficit court fee carefully because exercise of such
discretion would certainly have some 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
G . 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
H presentation of the plaint. The exercise of the discretion by the
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 403
[J. CHELAMESWAR, J.]
Court is conditional upon the satisfaction of the Court that the A
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:
B
" .......... the Subordinate Judge has erred in allowing the
I.A. Nos. 75 and 76 of 2004 by exercising the discretion
without analysing the bona tides of the plaintiffs case and
without giving notice to the defendant."
Such a conclusion was recorded on the basis of the finding: C
"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 (jue to non availability of stamp paper, proper
court fee could not be paid. In I.A. No. 75/2004 no reason D
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. E
But accepting such reasons, the delay in representation
as well as the payment of deficit court fee has been
accepted by the court below."
[Emphasis supplied]
F
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 G
do not think it necessary to examine the other questions raised
by the 2nd defendant.
40. The appeal is dismissed.
D.G. Appeals dismissed.
H