Holding

A plaint that has been accepted after the court permits payment of deficit court fee under Section 149 CPC cannot be rejected under Order VII Rule 11(c); the extensions were valid and the respondents’ belated objection was mala fide.

Summary

The appellant filed a suit for recovery of money in 1998 with a deficit court fee, seeking extensions under Sections 148, 151 and later Section 149 of the CPC because stamp fee papers were unavailable. The deficit fee was eventually paid and the court condoned a 272‑day delay in presenting the plaint. The respondents, who never objected to the fee extensions, later filed an application under Order VII Rule 11(c) in 2008 claiming the suit was barred by limitation and that the extensions were granted without notice. The trial court dismissed the application, the High Court set aside the trial court’s orders, and the Supreme Court held that once the court permits payment of deficit court fee under Section 149, the plaint cannot be rejected under Order VII Rule 11(c); the respondents’ belated objection was mala fide, and the High Court’s interference was unwarranted. The appeal was allowed and the High Court’s order set aside.

Issues considered

The validity of extensions of time and condonation of delay granted under Sections 148, 149 and 151 of the CPC for payment of deficit court fee.
Whether an application under Order VII Rule 11(c) can be entertained after the plaint has been registered and the parties have proceeded with the trial, especially when the respondents had not raised any objection earlier.
Whether notice is required before a court exercises its power under Section 149 to allow payment of deficit court fee.
Whether the High Court erred in interfering with the trial court’s orders under Article 227 of the Constitution.

Legislation cited

Code of Civil Procedure, 1908s. 148, s. 149, s. 151, s. Order VII Rule 11(c)
Court Fees Act, 1870s. 4

Subjects

deficit court feeSection 149 CPCOrder VII Rule 11(c)limitationplaint rejectioncivil procedureextension of timeex parte decreerevision under Article 227

Judgment

[2009] 11 S.C.R. 342

A P.K. PALANISAMY
v.
N. ARUMUGHAM & ANR. "'.•
(Civil Appeal No. 4643 of 2009) I

JULY 23, 2009
B
[S.B. SINHA AND DEEPAK VERMA, JJ.]
...__,
Code of Civil Procedure, 1908: 0.7 r.11, s.149 r.w. s.151 )'

- Rejection of p{aint - Filing of plaint in 1998 on payment of
c deficit court fees for the reason that stamp fees papers were
not available in the Sub-Treasury - Time granted - Deficit
court fees deposited and delay condoned - Respondent filed
written statement - No objection raised therein with regard to
the delay in payment of court fees - In 2008, defendant filed
D application seeking rejection of plaint urging for the first time
that suit was barred by limitation as the extension of time .,, "-
granted by trial court under s.149 r.w. s.151 and condonation
of delay was passed without notice to him - Held: If court fees •Jr
J.
were not available in a sub-treasury for one reason or the other,
~

E the court having regard to the maxim 'lex non cogit ad
impossibilia' would not reject prayer for extension of time to
deposit deficit court fees - Once an application under s. 149
.,..,-
is allowed, 0. 7, R. 11 (cj would not have application.
_...
The appellant filed. a suit for _recovery of money
F against the respondents on 4.10.1998. The plaint was
~
accompanied by a court fee at rupee 1 only. He also filed
an application under s.148 CPC r.w. s.151 seeking six
weeks time for payment of the deficit court fees, which ~

was granted. Another application was filed on 8.11.1998 r-

--
G seeking time for payment of deficit court fees on the .-

premise that stamp fees papers were not yet available in
~_,.,
the Sub-Treasury, which was also allowed. He however,
deposited the deficit court fee stamp on 17.2.1999, which
was accepted by the Subordinate Judge. An application
H 342

\
P.K. PALANISAMY v. N. ARUMUGHAM & ANR. 343

u/s.151 CPC for condoning the delay of 272 days in A
presenting the plaint was allowed by trial court by order
dated 2.11.2000. On 17 .2.2003, respondent filed written
statement wherein, no objection was raised with regard
to the delay in payment of court fees and as such no
issue was also framed in this regard. Thereafter B
respondent remained absent and an ex parte decree was
passed on 29.9.2004. The ex parte decree was set aside
on payment of costs.

In 2008, the respondent filed an application under
order 7 rule 11 CPC seeking for rejection of plaint urging C
for the first time that the suit presented on 5.10.1998 was
barred by limitation as the extension of time granted by
trial court under s.149 r.w. s.151 CPC and condonation
of delay in refiling was passed without issuing notice to
him. The trial court dismissed the said application. High D
'f Court allowed the revision petition filed under Article 227
of the Constitution of India. Hence the appeal.

Allowing the appeal, the Court
-E
HELD: 1. When a plaint is presented ordinarily if
should be accompanied with the requisite court fees
payable thereupon. It, however, does not mean that
whenever a plaint is presented with deficit court fee, the
same has to be rejected outrightly. Section 149 CPC
provides for the court's power to extend the period. F
Section 149 raises a legal fiction in terms whereof as and
when such"-deficit court fee is paid, the same would be
deemed to have been paid in the first instance. [Para 7]
[353-C-D; 354-8-E]
G
2. Appellant while presenting the plaint contended
that sufficient court fee stamps were not available in the
sub-treasury. The Presiding Officers of the local Civil
Courts in a given situation would be aware thereof. It
may, therefore, consider the prayers made in that behalf H
344 SUPREME COURT REPORTS [2009] 11 S.C.R.

A by a suitor liberally. If court fees are not available in a
sub-treasury for one reason or the other, the court
having regard to the maxim 'lex non cogit ad impossibilia"
would not reject such a prayer. Payment of court fees
furthermore is a matter between the State and the suitor.
B Indisputably, in the event a plaint is rejected, the
defendant would be benefited thereby, but if an objection
is to be raised in that behalf or an application is to be
entertained by the court at the behest of a defendant for
rejection of the plaint in terms of Order VII rule 11 (c) CPC,
C several aspects of the matter are required to be
considered. Once an application under Section 149 is
allowed, Order VII Rule 11 (c) of Code would have no
application. It is for that additional reason, the orders
extending the time to deposit deficit court fee should have
been challenged. Filing of an application fol'.' rejection of
0
plaint in a case of this nature as also having ~egard to the
events which have taken place subs·equent to
registration of the suit appears to be mala fide. If the trial
judge did not entertain the said plea, the High Court ·
should not have interfered therewith. [Para 8] [344-F-H;
1
E 345-A-D]
3. The respondents in their written statement did not
raise any issue with regard to the correctness or
otherwise of the orders dated 7th October, 1998, 8th
F November 1998, 20th November, 1998 and 21st January,
1999. Rightly or wrongly, the plaint was accepted. The
deficit court fee was paid. The court was satisfied with
regard to the bona fide of the plaintiff. Hearing of the suit
proceeded; not only issues were framed but the
G witnesses on behalf of the parties were also examined by
both the parties. It is difficult to believe that from 10th
January 2001 to 4th January 2008, the respondents or
their counsel did not have any occasion to inspect the
records. Any counsel worth itself would not only do so
H but even without doing so would address himself a
P.K. PALANISAMY v. N. ARUMUGHAM &ANR. 345
~
~
question as to why a suit filed on 4th October 1998 was A
entertained in the year 2000. The suit was at one point of
I
/lo time decreed ex parte. The same was set aside on certain
conditions. Evidently, the conditions laid down were
satisfied only upon obtaining an extension of time. [Para
9] [355-D-G] B

.>. K. Natarajan vs. P.K. Rajasekaran (2003) 2 M.L.J. 305;
Ramiah & Anr. vs.R. Palaniappan & Ors. (2007) 5 MLJ 559;
'I
S. V. Arjunaraja vs.P. Vasantha 2005 (5) CTC 401 and V.N.
Subramaniyam vs. A. Nawab John & Ors. (2007) 1 MLJ 669,
referred to.
c
4. The Code does not envisage a situation where the
civil court could hear a defendant before registering a
plaint. When a suit is filed, the Civil Court is bound by the

- -+-
procedures laid down in the Code. The defendant upon
appearing, however, in certain situations, may question
the orders passed by the Civil Court at a later stage. [Para
D

10] [356-C]

5. Indisputably, the -courts were required to assign E
reasons in support of their orders. Had the validity and/
or legality of those orders been challenged before an
appropriate court, it would have been possible by the
plaintiffs to contend that the defendants had waived their
~
right by their subsequent conduct and they would be
deemed to have accepted the same. Even on later
F
occasion, the courts would assign reasons upon
satisfying itself once over again. If an order has been
passed without hearing the one side, he may be heard
but by reason thereof, the plaint would not be rejected
outrightly. Before doing so, the applications of the plaintiff G
... -<( under Section 149 have to be· rejected. [Para 11] [356-D-
F]

Buta Singh (Def!_d) By LRs. v. Union of India (1995) 5
sec 284, referred to. H
346 SUPREME COURT REPORTS [2009] 11 S.C.R.

''t'
A 6. It is now a well settled principle of law that an order
passed by a court having jurisdiction shall remain valid
unless it is set aside. [Para 12) [357-D-E]

Baljinder Singh v. Rattan Singh (2008) 11 SCALE 198,
relied on
B
State of Kera/a v. M.K. Kunhikannan Nambiar Manjeri
Manikoth, Naduvil (dead) & Ors. AIR 1996 SC 906, referred ""
to. )<

c 7. Section 149 provides that where the whole or any
part of court fee prescribed for any document 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, ~nd
D upon such payment, the document in respect of which
such fee is payable, shall have the same force and effect
~
as if such court fee had .been paid in the first instance.
Section 148 CPC is a general provision and Section 149
thereof is special. The first application should have been
filed in terms of Section 149 CPC. Once the court granted
E
time for payment of deficit court fee within the period
specified therefor, it would have been possible to extend
the same by the court in exercise of its power under
Section 148 CPC. Only because a wrong provision was
mentioned by the appellant, the same by itself would not
F be a ground to hold that the application was not
maintainable or that the order passed thereon would be
a nullity. IHs a well settled principle of law that mentioning
of a wrong provision or non-mentioning of a provision
does not invalidate an order if the court and/or statutory
G authority had the requisite jurisdiction therefor. [Paras 13
and 16] [306-D-G; 359-C-D]
)>.. "~

8. An application for rejection of the plaint was filed
only in the year 2008. Evidently, that was not the stage
H
P.K. PALANISAMY v. N. ARUMUGHAM &ANR. 347

for entertaining the application. Order VII rule 11(c) CPC A
could not have been invoked at that point of time. [Para
14] (360-E]

Mahasay Ganesh Prasad Ray & Anr. v. Narendra Nath
Sen & Ors. AIR 1953 SC 431; Mahanth RamDas v. Ganga
B
~
Das AIR 1961 SC 882; Mannan Lal v. Mst. Chhotaka Bibi
(Dead) by LRs. B. ShardaShankar & Ors. (1970) 1 SCC
769; Ganapathy Hegde v. Krishnakudva (2005) 13 sec
~
539; K. C. Skaria v. Govt. of State of Kera/a & Anr. (2006) 2
sec 285, relied on.
c
Ram Sunder Ram v. Union of India_ & Ors. 2007 (9)
SCALE 197; N. Maniv. Sangeetha Theatres & Ors. (2004)
12 SCC 278; Saleem Bhai & Ors., v.State of Maharashtra &
~
' Ors. (2003) 1 SCC !?57; Ram Prakash Gupta v. Rajiv Kumar
Gupta & Ors. (2007) 10 SCC 59, referred to. D
.._
.
Case Law· Reference:
(2003) 2 M.L.J. 305 re.ferred to Para 9
(2007) 5 MLJ 559 referred to Para 9
E
2005 (5) CTC 401 referred to Para 9
(2007) 1 MLJ 669 referred to Para 9
.l; (1995) s sec 284 . referred to Para 11
F
(2008) 11 SCALE 198 relied on Para 12
AIR 1996 SC 906 referred to Para 12

...(
2007 (9) SCALE 197 referred to Para 13

- (2004) 12 sec 218 referred to Para 13 G

... ~ (2003) 1 sec 557 referred to Para 15
(2007) 10 sec 59 referred to Para 15

H
348 SUPREME COURT REPORTS [2009] 11 S.C.R.

A AIR 1953 SC 431 relied on Para 16
AIR 1961 SC 882 relied on Para 16

(1970) 1 sec 769 relied on Para 16
(2005) 13 sec 539 relied on Para 16
B
(2006) 2 sec 285 relied on Para 16

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
~
4643 of 2009.
c From the Judgment & Order dated 28.11.2008 of the High
Court of Judicature at Madras at Madras in exercise of
revisional jurisdiction in C.R. P.PD. No. 815 of 2008.

E. Padmanabhan and V: Mahana for the Appellants.
D
Krishnan Venugopal, R. Anand Padmanabhan, Pramod
Dayal for the Respondents. ..- •
The Judgment of the Court was delivered by

E S.B. SINHA, J. 1. Leave granted.

2. This appeal is directed against a judgment and order
dated 28th November, 2008 passed by a learned single judge
of the High Court of Judicature at Madras whereby and
whereunder a Civil Revision Petition filed under Article 227 of ~
F
the Constitution of India against the Order dated 05th February,
2008 passed by the Additional District Munsif cum Fast Track
Court No.II, Salem in I.A. No. 22 of 2008 in O.S. No. 114 of
2004 has been allowed.

G 3. The brief facts necessary to be noted for the purpose
of disposal of this case are as under:
,._ .......
T:ie appellant allegedly advanced a loan for a sum of
Rs.5,90,000/- to the respondent No.1 on 29th January, 1995.
As the respondent No.1 failed to refund the amount despite
H
P.K. PALANISAMY v. N. ARUMUGHAM &ANR. 349
[S.B. SINHA, J.]

repeated demands from the appellant, a Promissory Note was A
got executed by her on or about 2nd October, 1995.

The respondent No. 1 issued two cheques for a sum of
Rs.1,00,000/- each on 8th June, 1996 towards partial discharge
of his obligation. However, the cheques when presented to the
B
Banks were returned with the remarks "No fund".

The appellant caused a legal notice to be served on the
~ respondents on 29th August, 1998, which was received by them
on 2nd September, 1998.
c
The appellant instituted a suit for recovery of money against
the respondents on or about 4th October, 1998 before the
Subordinate Judge, Salem. The plaint was presented on 5th
October, 1998 as the 2nd, 3rd and 4th October, 1998 were
holidays for the courts. The plaint was accompanied by a court D
fee of Re.1/- only. He also filed an application purported to be
in terms of Section 148 read with Section 151 of the Code of
Civil Procedure (for short, "the Code") seeking six weeks time
for payment of the deficit court fees. The trial court granted six
weeks' time for payment of the deficit court fees by an order
E
dated 7.10.1998.

On or about 8th November, 2008, another petition was
filed by the appellant seeking eight weeks' time for payment
-it of deficit court fees on the premise that the stamp fee papers
were not yet available in the Sub-Treasury. The trial court F
granted eight weeks' time by an order dated 20th November,
1998. Another eight weeks' time was granted by the trial court
by an order dated 21st January, 1999. He, however, deposited
the deficit court fee stamp on 17th February, 1999, which was
accepted by the learned Subordinate Judge. G

Indisputably, an application marked as I.A. No. 838 of 2000
under Section 151 of the Code to condone the delay of 272
days in representing the plaint filed by the appellant was
allowed by the trial court by an order dated 2nd November, H
350 SUPREME COURT REPORTS [2009] 11 S.C.R.

A 2000. The plaint was represented with the application for
attachment before judgment and an application for condonation
of delay in re-filing.

The respondents entered appearance upon receipt of
summons on 10th January 2001. Indisputably, on the same day,
B
an order of attachment before judgment was also passed with
regard to the scheduled property.

On 17th February 2003, written statement was filed by the ,
respondent. In the said written statement, no objection was
c raised with regard to the delay in payment of court fee. No issue
in that behalf was framed.

Indisputably, thereafter, the respondents remained absent
and an ex parte decree came to be passed in favour of the
D appellant on 29th September, 2004 by the trial court.

An application marked as I.A. No. 1138 of 2005 filed on
behalf of the respondents after a gap of 289 days to set aside '
the ex parte decree was allowed by the trial court with a
condition to pay Rs.1000/- as costs.
E
Feeling aggrieved by and dissatisfied with the said' order,
the appellant preferred Revision Petition under Article 227 of
the Constitution of India before the High Court on or about 8th
June, 2007. The learned single judge of the High Court after
~
F observing that the modus operandi of the respondents is to
protract the suit proceedings, ruled a conditional order, viz., the
suit would be revived only if the respondents deposit Rs.
3,00,000/- by order dated 8th June, 2007. That order became
final. Even at that stage no objection as regards non-deposit
G of court fees within reasonable time was rc;iised by the
respondents.

Indisputably, the respondents deposited the money after
"'" .......
getting an extension as well and the suit was revived. The
appellant was examined and cross-examined so also his
H witness. However, It may be noticed that no suggestion to
P.K. PALANISAMY v. N. ARUMUGHAM & ANR. 351
[S.B. SINHA, J.]
~
impeach the credibility as to non-availability of court fee dr A
limitation was put to him.

Indisputably, an application marked as I.A No. 22 of 2008
under Order VII Rule 11 (c) was moved by the respondents on
or about 4th January 2008 seeking for rejection of the plaint
B
urging for the first time that the suit presented on 5th October
...... 1998 was barred by limitation as the extension of time granted
,...\
by the trial court under Section 149 read with Section 151 of
the Code and condonation of delay in re-filing was passed
without issuing notice to them. The appellant contested the said
application by filing a counter affidavit thereto.
c

The trial court by reason of order dated 5th February, 2008
dismissed the said application filed by the respondents.

Aggrieved thereby, the respondents preferred a Revisiqn D
. .., Petition marked as Civil Revision Petition No. 815 of2008
under Article 227 of the Constitution of India before the High
Court, which has been allowed by reason of the impugned
judgment.

4. Appellant is, thus, before us. E

5. Mr. E. Padmanabhan, learned Senior Counsel in
support of the appeal urged:

(i) The High Court committed a serious error in
F
passing the impugned judgment insofar as it failed
to take into consideration that the legality of the
orders dated 7.10.1998, 8.11.1998, 20.11.1998
and 21.1.1999 having not been questioned, the
same in effect and substance could not have been
set aside by reason of the impugned judgment. G
........ ~
\
(ii) The. appellant having acted bona fide inasmuch as
court fee stamp papers being not available in the
treasury, the learned trial court must be held to have
exercised its jurisdiction judiciously in terms of H
352 SUPREME COURT REPORTS [2009] 11 S.C.R.

A Section 149 of the Code.

(iii) Although the application for grant of time was filed
under Section 148 of the Code of Civil Procedure
read with Section 151 thereof, the same ought to
have been held to have been filed under Section
B

(iv)
149 of the Code.

The respondents having not raised any issue with
regard to delayed filing of the court fee stamp in
x
-
their written statement or thereafter, the application
c filed by them purported to be under Order VII Rule
11 (c) of the Code at the stage when the evidence
had been adduced by the parties ought not to have
been entertained.

D 6. Mr. Krishnan Venugopal, learned Senior Counsel "'-,
appearing on behalf of the respondents, on the other hand, ¥
would urge:

(i) Keeping in view the long line of decisions of
Madras High Court whereupon strong reliance has
E been placed by the High Court, the learned trial
court was legally bound to serve a notice upon the
respondents before passing of the orders· dated
\
7.10.1998, 8.11.1998, 20.11.1998 and 21.1.1999.
~-

F (ii) The jurisdiction of the trial court contained in Section
149 of the Code being limited, it was obligatory on
its part to assign sufficient and cogent reasons
therefor.

(iii) Non-grant of opportunity of hearing to the
G ~--
respondents by the trial court and non-recording_ of
reasons rendered the orders in question as nullities ~ ~.,.

and in that view of the matter, an application under
Order VII Rule 11 (c) for rejection of plaint must be
held to have been maintainable.
H
P.K. PALANISAMY v. N. ARUMUGHAM & ANR. 353
[S.S. SINHA, J.]
~
(iv) The trial court had the jurisdiction to entertain the A
said application at any stage of the suit

(v) Order VII Rule 11 (c) being not dependent upon an
order passed by the trial court under Section 149
of the Code, the latter shall prevail over the earlier.
B
... (vi) Ttle instant case being not the one where additional
court fee was required to be filed, the High Court
,.;
must be correctly and rightly held to have exercised
its jurisdiction.
c
7. When a plaint is presented ordinarily it should be
accompanied with the requisite court fees payable thereupon.
Section 4 of the Court Fees' Act, 1870 mandates the same in
the following terms:

I
,,., "4. Fees on documents filed, etc., in High Courts in their D
"'- extraordinary jurisdiction:- No document of any of the kinds
sp,ecified in the First or Second Schedule to this Act
annexed, as chargeable with fees, shall,be filed, exhibited
or recorded in, or shall be received or furnished by, any of
the said High Courts in any case coming before such Couft E
in the exercise of its extraordinary original civil jurisdiction;
or in the exercise of its extraordinary original criminal
jurisdiction;
...
in their appellate jurisdiction; -- or in the exercise of F
its jurisdiction as regards appeals from the judgments
(other than judgments passed in the exercise of the
ordinary original civil jurisdiction of the Court) of one or
more Judges of the said Court, or of a division Court;

or in the exercise of its jurisdiction as regards G
-- .-( appeals from the Courts subject to its superintendence;

as Courts of reference and revision.- or in the
exercise of its jurisdiction as a Court of Teference or
revision; H
354 SUPREME COURT REPORTS [2009] 11 S.C.R.

A unless in respect of such document there be paid a
fee of an amount not less than that indicated by either of
the said Schedules as the proper fee for such document."

It, however, does not mean that whenever a plaint is
presented with deficit court fee, the same has to be rejected
8
outrightly. Section 149 of the Code provides for the court'~
power to extend the period. It reads as under:
).: \
"149. Power to make up deficiency of Court-fees. - Where
the whole 'or any part of any fee prescribed for any
c 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
D document, in respect of which such fee is payable, shall ,_I

have the same force and effect as if such fee had been '
paid in the first instance."

Section 149 raises a legal fiction in terms whereof as and
E when such deficit court fee is paid, the same would be deemed
to have been paid in the first instance.

8. Appellant while presenting the plaint inter alia contended
that sufficient court fee stamps were not available in the sub-
treasury. The Presiding Officers of the local Civil Courts in a
F given situation would be aware thereof. It may, therefore,
consider the prayers made in that behalf by a suitor liberally. If
court fees are not available in a sub-treasury for one reason
or the other, the court having regard to the maxim 'lex non cog it
ad impossibilia" would not reject such a prayer.
G
Payment of court fees furthermqre is a matter between the
State and the suitor. Indisputably, in the event a plaint is
rejected, the defendant would be benefited thereby, but if an
objection is to be raised in that behalf or an application is to
be entertained by the court at the behest of a defendant for
H
P.K. PALANISAMY v. N. ARUMUGHAM &ANR. 355
[S.B. SINHA, J.]

rejection of the plaint in terms of Order VII rule 11 (c) of the A
Code, several aspects of the matter are required to be
considered.

Once an application under Section 149 is allowed, Order
VII Rule 11(c) of Code will have no application.
8
It is for thai additional r~ason, the orders extending the time
..... to deposit deficit court fee should have been challenged .
Ji
Filing of an application for rejection of plaint in a case of
this nature as also having regard to the events which have taken c
place subsequent to registration of the suit appears to us to
be mala fide.

If the learned trial judge did not entertain the said plea, the
High Court should not have interfered therewith.
D
.,,.
9. The respondents in their written statement did not raise
"'-
any issue with regard to the correctness or otherwise of the
orders dated 7th October, 1998, 8th November 1998, 20th
November, 1998 and 21st January, 1999. Rightly or wrongly,
the plaint was accepted. The deficit court fee has been paid. E
The court was satisfied with regard to the bona fide of the
plaintiff. Hearing of the suit proceeded; not only issues were
framed but the witnesses on behalf of the parties were also

.. examined by both the parties. It is difficult to believe that from
10th January 2001 to 4th Jariuary 2008, the respondents or F
their counsel did not have any occasion to inspect the records.
Any counsel worth itself would not only do so but even without
doing so would address himself a question as to why a suit filed
on 4th October 1998 was entertained in the year 2000. The suit
was at one point of time decreed ex parte. The same was set G
aside on certain conditions. Evidently, the conditions laid down
·.,,...- ~ had been satisfied only upon obtaining an extension of time.

In the aforementioned backdrop of events, we may not
have to go into the correctness or otherwise of the decision
rendered by the Madras High Court in K. Natarajan vs. P.K. H
356 SUPREME COURT REPORTS [2009] 11 S.C.R.

.,...
A Rajasekaran ((200,3) 2 M.L.J. 305], which has been followed
in Ramiah & Anr. vs. R. Palaniappan & Ors. [(2007) 5 MLJ
559], S. V. Arjf!naraja vs.P. Vasantha [2005 (5) CTC 401] and
V.N. Subramaniyam vs. A. Nawab John & Ors. [(2007) 1 MLJ
669].
B
10. We have, however, serious reservations as to whether
the civil court could hear a defendant before registering a plaint.
The Code does not envisage such a situation. When a suit is
...
filed, the Civil Court. is bound by the procedures laid down in
the Code. The defendant upon appearing, however, in certain
•
c situations, may question the orders passed by the Civil Court
at a later stage.

11. We would assume that the respondents were entitled
~
'
to a notice before registration of plaint under Section 149 of
D the Code. Indisputably, the courts were required to assign
reasons in support of their orders. Had the validity and/or
.li
legality of those orders been challenged before\an appropriate
court, it would have been possible by the plaintiffs to contend
that the defendants had waived their right by their subsequent
E conduct and they would be deemed to have accepted the
same. Even on later occasion, the courts would assign reasons
upon satisfying its~lf once over again. If an order has been
passed without hearing the one side, he may be heard but by
reason thereof, the plaint would not be rejected outrightly.
~
Before doing so, the applica~ions of the plaintiff under Section
F
149 of the Code have to be rejected.

In Buta Singh (Dead) By LRs. v. Union of India [(1995) 5
sec 284], it was held:
~
'The aid of Section 149 could be taken only when the party ~
G ~
was not able to pay court fee in circumstances beyond his
control or under unavoidable circumstances and the court ~ ..._,
· would be justified in an appropriate case to exercise the
discretionary power under Section 149, after giving due
H notice to the affected party. But that was not the situation
P.K. PALANISAMY v. N. ARUMUGHAM & ANR. 357
[S.B. SINHA, J.]
,...., in this case. Under the relevant provisions of the Court Fee A
Act applicable to appeals filed in the High Court of the
Punjab & Haryana, the claimants are required to value the
appeals in the MOAs and need to pay the required court
fe'e. Thereafter the appeal would be admitted and the
notice would go to the respondents. The respondents B
would be put on notice of the amount, the appellant would
....... be claiming so as to properly canvass the correctness of
the claim or entitlement. The claim cannot be kept in
)!(_
uncertainty. If in an appeal under Section 54 of the Land
Acquisition Act the amount is initially kept low and then c
depending upon the mood of the appellate court, payment
of deficit court fee is sought to be made, it would create
unhealthy practice and would become a game of chess
and a matter of chance. That practice would not be
conducive and proper for orderly conduct of litigation."
D
,>
,.._ 12. It is now a well settled principle of law that an order
passed by a court having jurisdiction shall remain valid unless
it is set aside.

In State of Kera/av. M.K. Kunhikannan Nambiar Manjeri E
Manikoth, Naduvil (dead) & Ors. [AIR 1996 SC 906], it is
"' stated:

"7. In Halsbury's Laws of England, 4th edition, (Reissue)
Volume 1(1) in paragraph 26, page 31, it is stated, thus:
"' F
"If an act or decision, or an order or other instrument
is invalid, it shquld, in principle be n·u11 and void for
.all purposes: and it has been said that there are no
degrees of nullity. Even though such an act is wrong
and lacking in jurisdiction, however, it subsists and G
remains fully effective unless and until it is set aside
.... --. .-i
\
by a Court of competent jurisdiction. Until its validity
is challenged, its legality is preserved."

In the Judicial Review of Administrative Action De Smith,
H
358 SUPREME COURT REPORTS [2009] 11 S.C.R.

A Wolf and Jowell, 1995 edition, at pages 259-260 the law )-
is stated, thus:

The erosion of the distinction between jurisdictional
errors and non-jurisdictional errors has, as we have
seen, correspondingly eroded the distinction
B
between void and voidable decisions. The courts
have become increasingly impatient with the
distinction, to the extent that the situation today can ~

be summarised as follows: .)(

c ( 1) All official decisions are presumed to be valid
until set aside of otherwise held to be invalid by a
court of competent jurisdiction.

Similarly, Wade and Forsyth in Administrative Law,
D Seventh edition -1994, have stated the law thus at pages
341-342:
.'.Ii
... every unlawful administrative act, however invalid,
is merely voidable. But this is no more than the
truism that in most situations the only way to resist
E unlawful action is by recourse to the law. In a well-
known passage Lord Radcliffe said:

An order, even if not made in good faith, is still an
act capable of legal consequences. It bears no
~
F brand of invalidity upon its forehead. Unless the
necessary proceedings are taken at law to establish
the cause of invalidity and to get -it quashed or
otherwise upset, it will remain as effective for its
ostensible purpose as the most impeccable of
G orders.

This must be equally ·true even where the brand of
invalidity is plainly visible : for there also the order \.- .-....
can effectively be resisted in law only by obtaining
the decision of the court. The necessity of recourse
H to the court has been pointed put repeatedly in the
P.K. PALANISAMY v. N. ARUMUGHAM & ANR. 359
[S.B. SINHA, J.]

House of Lords and Privy Council without distinction A
between patent and latent defects."

{See also Baljinder Singh vs. Rattan Singh [2008 (11)
SCALE 198]}

13. A contention has been raised that the applications filed B
by the appellant herein having regard to the decisions of the
Madras High Court could not have been entertained which
were filed under Section 148 of the Code. Section 148 of the
Code is a general provis'ion and Section 149 thereof is special.
The first application should have been filed in terms of Section C
149 of the code. Once the court granted time for payment of
deficit court fee within the period specified therefor, it would
have been possible to extend the same by th~ court in exercise
of its power under Section 148 of the Code. Only because a
wrong provision was mentioned by the appellant, the same, in D
:1-- our opinion, by itself would not be a ground to hold that the
application was not maintainable or that the order passed
thereon would be a nullity.

It is a well settled principle of law that mentioning of a E
wrong provision or non-mentioning of a provision does not
invalidate an order if the court and/or statutory.authority l'.Jad the
requisite jurisdiction therefor.

In Ram Sunder Ram v. Union of India & Ors. [2007 (9)
SCALE 197], it was held: F

" ..... It appears that the competent authority has wrongly
quoted Section 20 in the order of discharge whereas, in
fact, the order of discharge has to be read having been
passed under Section 22 of the Army Act. It is well settled G
. that if an authority has a power under the law merely
. because while exercising that power the source of power
is not specifically referred to or a reference is made to a
wrong provision of law, that by itself does not vitiate the
exercise of power so long as the power ~oes exist and H
360 SUPREME COURT REPORTS [2009] 11 S.C.R.

r
A can be traced to a source available in law [see-N. Mani
v. Sangeetha Th~atre and Ors. (2004) 12 SCC 278].
Thus, quoting of wrong provision of Section 20 in the order
of discharge of the appellant by the competent authority
does not take away the jurisdiction of the authority under
B Section 22 of the Army Act. Therefore, the order of
discharge of the appellant from the army service cannot
be vitiated on this sole ground as contended by the
J.
Learned Counsel for the appellant." ~.

,•.

In N. Mani v. Sangeetha Theatres & Ors. [(2004) 12 SCC
c 278], it is stated:

"9. It is well settled that if an authority has a power under
the law merely because while exercising that power the
source of power is not specifically referred to or a
D reference is made to a wrong provision of l~w; that by itself .....
does not vitiate the exercise of power so long as the power ~
does exist and can be traced to a source available in law."

14. An application for rejection of the plaint was filed only
in the year 2008. Evidently, that was not the stage for
E
entertaining the application. Order VI I rule 11 (c) of the Code
could not have been invoked at that point of time.

15. Mr. Venugopal, however, would rely upon a decision
~
of this Court in Saleem Bhai & Ors., v. State of Maharashtra
F & ors. [(2003) 1 sec557].

We would assume that the said decision lays down the law
correctly. But we may notice that therein the court was
concerned with an application filed under Order VII Rule 11 (a)
G and (d) of the Code to hold that the therefor exercising the
jurlsdiction thereunder the averments in the plaint are germane
and the pleas taken by the defendants in the written statement ~-
would be wholly irrelevant at that stage. Therein, a direction to
file the written statement was given without deciding the
application under Order VII rule 11 of the Code. lt was held to
H
P.K. PALANISAMY v. N. ARUMUGHAM & ANR. 361
[S.B. SINHA, J.]
~
be a procedural irregularity touching the exercise of jurisdiction A
by the trial court. It was, therefore, not a case even on facts
where the jurisdiction was exercised after the evidence had
been adduced. The observation made must be held to be
confined to the fact of that case only and it does not lay down a
general proposition' of law that even after the evidence are led, B
an application for rejection of the plaint under Order VII Rule
...... 11 (c) is maintainable as by that time tt"ie suit has already been
)<, registered by the court upon exercising its jurisdiction under
Section 149 of the Code.

We may, however, notice that in Ram Prakash Gupta v.
c
Rajiv Kumar Gupta & Ors. [(2007) 10 SCC 59], it was held :-

"22. It is also relevant to mention that after filing of the
written statement, framing of the issues including on
..... limitation, evidence was led, the plaintiff was cross- D
~ examined, thereafter before conclusion of the trial, the
application under Order 7 Rule 11 was filed for rejection
of the plaint. It is also pertinent to mention that there was
not even a suggestion to the appellant-plaintiff to the effect 1
that the suit filed by him is barred by limitation. E

23. On going through the entire plaint averments, we are
of the view that the trial court has committed an error in
... rejecting the same at the belated stage that too without
adverting to all the materials which are available in the
plaint. The High Court has also committed the same error
F
in affirming the order of the trial court."

16. The question which survives for consideration is as to
what is the scope of Section 149 of the Code?
G
In Mahasay Ganesh Prasad Ray & Anr. v. Narendra Nath
-' Sen & Ors. [Al R 1953 SC 431], this Court held that the court
fee is a matter between the State and the suitor.

Mr. Venugopal would urge that the said observations were
H
362 SUPREME COURT REPORTS [2009] 11 S.C.R.

~
A made keeping in view the fact that the contention in that behalf
had been raised at the appellate stage. It may be so, but it is
well known that the appeal is continuation of the suit.

Yet again in Mahanth Ram Das v. Ganga Das, [AIR 1961
SC 882), this Court held:-
B
"5. The case is an unfortunate and unusual one. The ....
application for extension of time was made before the time
;I..
fixed by the High Court for payment of deficit court fee had
actually run out. That application appears not to have been
c considered at all, in view of the peremptory order which
had been passed earlier by the Division Bench hearing
the appeal, mainly because on the date ofthe hearing of
the petition for extension of time, the period had expired.
The short question is whether the High Court, in the
0 circumstances of the case, was powerless to enlarge the ..
time, even though it had peremptorily fixed the period for ~

payment. lf the Court had considereg the application and
rejected it on merits, other consigerations might have
arisen; but the High Court in the order quoted, went by the
E letter of the original order under ~hich time for payment
had been fixed. Section 148 of the Code, in terms, allows
extension of time, even if the original period fixed has
expired, and Section 149 is equally liberal. A fortiori, those
sections could be invoked by the ~pplicant; when the time
F had not actually expired. That. the application was filed in
the vacation when a Division Bench was not sitting should
have been considered in dealing with it even on 13-7-
1954, when it was actually heard. The order, though
passed after the expiry of the time fixed by the original
judgment, would have operated from 8-7-1954. How
G
undesirab.le it is to fix time peremptorily for a future
happening which leaves the Court powerless to deal with \. ~
events that might arise in between, it is not necessary to
decide in this appeal. These orders turn out, often enough
to be inexpedient. Such procedural orders, though
H
P.K. PALANISAMY v. N. ARUMUGHAM &ANR. 363
[S.S. SINHA, J.]

peremptory (conditional decrees apart) are, in essence, A
in terrorem, so that dilatory litigants might put themselves
in order and avoid delay. They do not, however, completely
estop a court from taking note of events and circumstances
which happen within the time fixed. For example, it cannot
be said that, if the appellant had started with the full money B
ordered to be paid and came well in time but was set upon
and robbed by thieves the day previous, he could not ask
" for extension of time, or that the Court was powerless to
extend it. Such orders are not like the law of the Medes
and the Persians. Cases are known in which Courts have c
moulded their practice to meet a situation such as this and
to have restored a suit or proceeding, even though a final
order had been passed. We need cite only one such case,
and that is Lachmi Narain Marwari v. Balmakund Marwari.
No doubt, as observed by Lord Phillimore, we do not wish D
to place an impec:Ument in the way of Courts in enforcing
prompt obedience and avoidance of delay, any more than
did the Privy Council. But we are of opinion that in this
case the Court could have exercised its powers first on 13-
7-1954, when the petition filed within time was before it,
E
and again under the exercise of its inherent powers, when
the two petitions under Section 151 of the Code of Civil
Procedure were filed. If the High Court had felt disposed
to take action on any of these occasions, Sections 148
and 149 would have clothed them with ample power to do
F
justice to a litigant for whom it entertained considerable
sympathy, but to whose aid it erroneously felt unable to
come."

In Mannan Lal v. Mst. Chhotaka Bibi (Dead) by LRs. B.
Sharda Shankar & Ors. [ (1970) 1 SCC 769], it was held: G
...
- ...I "17. On a parity of reasoning it is difficult to see why if a
memorandum of appeal insufficiently stamped is not to be
rejected as barred under the Limitation Act, why a different
conclusion should flow as regards compliance with the
H
P.K. PALANIS,{\MY v. N. ARUMUGHAM & ANR. 365
[S.B. SINHA, J.]

court was also empowered under Section 149 CPC to A
extend the time. In the present case, the order passed by
the trial court accepting the deficit court fee paid on 23-2-
2000, thereafter registering the suit on 10-4-2000 and
consequently the order dated 3-11-2001 rejecting the
defendant-respondents' application under Order 7 Rule 11 B
CPC were perfectly in accordance with law and within the
~
discretion conferred on the trial court with which the High
)._
Court ought not to have interfered in exercise of the
jurisdiction vested in the High Court under Section 115
CPC. The order of the High Court, if allowed to stand, is c
likely to occasion failure of justice."

Yet again in KC. Skaria v. Govt. of State of Kera/a & Anr.
((2006) 2 sec 285], it was held:

"20. The appellant next attempted to press into service D
Section 149 CPC to contend that he ought to have been
given an opportunity to pay the deficit court fee on the total
amount due for the work done. Section 149 provides that
where the whole or any part of court fee prescribed for any
document has not been paid, the court may, in its E
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 court fee had F
been paid in the first instance. Section 4 of the Court Fees
Act bars the court from receiving the plaint if it does not
bear the proper court fee. Section 149 acts as an exception
to the said bar, and enables the court to permit the plaintiff
to pay the deficit court fee at a stage subsequent to the
G
filing of the suit and proyides that such payment, if
'~ ..J
permitted by the court, shall have the same effect as if it
had been paid in the first instance. Interpreting Section
149, this Court in Mannan Lal v. Chhotaka Bibi held that
Section 149 CPC mitigates the rigour of Section 4 of the
H
366 SUPREME COURT REPORTS [2009] 11 S.C.R.

.:.· ! - A CF Act, and the courts, should harmonise the provisions •
- of the CF Act and CPC by reading Section 149 as a
proviso to Section 4 of the CF Act, and allowing the deficit
to be made good within the period to be fixed by it. This
Court further held that if the deficit is made good, no
8 objection could be raised on the ground of bar of limitation,
as Section 149 specifically provides that the document is ,.
to have validity with retrospective effect."
"-
Mr. Venugopal would, however, contend that those
observations in that case were made holding that the conduct
c on the part of the complainant was not bona fide.

17. For the reasons aforementioned, the impugned
judgment cannot be sustained. It is set aside accordingly. The
appeal is allowed. However, in the facts and circumstances of ~
D the case, there shall be no order as to costs.
I
D.G. Appeal allowed.