SCC Online Web Edition, Copyright © 2021

Page 1 Friday, February 05, 2021

Printed For: Ishika Dikshit, School of Law, NMIMS
SCC Online Web Edition: http://www.scconline.com

-----------------------------------------------------------------------------------------------------------------------------------------------------------
-

RFA. No. 167 of 2019

Biju Davis v. Joby

2019 SCC OnLine Ker 19967

In the High Court of Kerala at Ernakulam

(BEFORE K. HARILAL AND C.S. DIAS, JJ.)

Biju Davis Represented by His Power of Attorney Holder Aneesh

George … Appellant;
Versus
Joby and Others … Respondent/s.
RFA. No. 167 of 2019†
Decided on December 2, 2019
Advocates who appeared in this case:
By Adv. Sri. T.N. Manoj
R1 by Adv. Smt. S. Mumtaz
The Judgment of the Court was delivered by
C.S. DIAS, J.:— The plaintiff in OS No. 167/2014 on the file of the Court of the
Subordinate Judge, Irinjalakkuda, is the appellant in this R.F.A. The defendants in the
suit are the respondents in this appeal.
2. The appellant had filed the suit seeking a decree for specific performance of an
agreement of sale or in the alternative for a decree for return of the advance amount.
3. The valuation of the plaint was Rs. 62,06,170/-. The appellant paid 1/10th of the
court-fee payable, at the time of institution of the suit. After formulation of the issues
in the suit, the appellant was directed to pay the balance court-fee on 26.8.2016
amounting Rs. 4,63,396/-. According to the appellant, he had applied for the court-fee
stamp papers before the District Treasury, and obtained the same, which was
produced before the Court on 26.8.2016. The Court below recorded in the order sheet
that the balance court-fee was paid and posted the case for steps to 20.9.2016.
However, subsequently it was noticed that the court-fee stamp paper that was
produced was on non-judicial stamp paper instead of judicial stamp paper.
4. The Court below returned non-judicial stamp paper to the appellant and directed
him to produce judicial stamp paper on or before 19.11.2016.
5. As the mistake was committed by the District Treasury, the appellant filed WP(C)
No. 36821/2016 before this Court, seeking a direction to the District Collector, Thrissur
to exchange the non-judical stamp paper with judicial stamp paper. This Court by
judgment dated 20.12.2016, directed the District Collector to do the needful on or
before 10.1.2017. Further proceedings were directed to be kept in abeyance. The suit
was accordingly adjourned from time to time for the production of judicial stamp
paper. Also, during the period from 13.11.2017 to 20.1.2018, there was no sitting.
Ultimately, the District Collector passed an order and directed the stamp paper to be
exchanged.
6. The appellant produced the judicial stamp paper before the Court below on
8.2.2018.
7. During this interregnum period, the respondent filed an application to advance
the hearing of the suit, to consider the maintainability of the suit, due to non-payment
of balance court-fee. The court below advanced the hearing to 12.2.2018 and passed
the impugned order on 28.2.2019, rejecting the plaint under Order VII Rule 11(c) of
 SCC Online Web Edition, Copyright © 2021
Page 2 Friday, February 05, 2021
Printed For: Ishika Dikshit, School of Law, NMIMS
SCC Online Web Edition: http://www.scconline.com

-----------------------------------------------------------------------------------------------------------------------------------------------------------
-

the Code of Civil Procedure (in short referred to as “Code”), on the ground that the
court-fee was not paid within the stipulated time period as provided under Sec.4A of
the Kerala Court Fees and Suits Valuation Act.
8. It is assailing the impugned order, that the present appeal is filed.
9. We have heard Sri. T.N. Manoj, the learned counsel for the appellant and Smt.
Mumtaz Shumsuddin, the learned counsel for the respondent.
10. From the facts of the case, the following points emerge for consideration:
(i) Whether the Court below was justified in rejecting the plaint for non-payment of
balance court-fee, due to no fault of the appellant?
(ii) Whether the Courts have the discretion to accept court-fees at any stage of the
suit?
(iii) Whether Sec.4A of the Kerala Court Fees and Suits Valuation Act, is directory or
mandatory?
11. For the sake of convenience, the points are considered together.
12. Sec.149 of the Code of Civil Procedure reads as follows:
149. Power to make up deficiency of Court-fees- Where the whole or any
part of any fee prescribed for any document by the law for the time being in force
relating to court-fees has not been paid, the Court may, in its discretion, at any
stage, allow the person, by whom such fee is payable, to pay the whole or part, as
the case may be, of such court-fee, and upon such payment the document, in
respect of which such fee is payable, shall have the same force and effect as if such
fee had been paid in the first instance.
(emphasis supplied)
13. Sec.149 of the Code, confers unfettered discretion on the Court to permit
payment of court-fee at any stage.
14. It is an undisputed fact that the appellant submitted the court-fee stamp paper
within the stipulated time period, on 26.8.2016, which was accepted by the Court.
Later, the Chief-Ministerial Officer found that the stamp paper was non-judicial stamp
paper and not judicial stamp paper. The non-judicial stamp paper was returned to the
appellant, with a direction to produce judicial stamp paper.
15. The appellant immediately approached this Court and filed WP(C) No.
36821/2016; which was disposed of directing the District Collector to provide the
appellant with judicial stamp paper, as was applied by him, within a period of three
weeks.
16. Immediately, on the Treasury providing the appellant with the judicial stamp
paper, he produced it before the Court below on 8.2.2018. It is, thereafter, that the
impugned order was passed on 28.2.2019.
17. The learned counsel for the appellant contended that the impugned order
passed by the Court below was erroneous and wrong. The Court below has failed to
appreciate the fact that there was no willful laches or negligence on the part of the
appellant. It was only because of the mistake committed by the Treasury, who
provided the appellant with non-judicial stamp paper instead of judicial stamp paper,
the he produced the same in Court, without understanding the difference. The learned
counsel also relied on the decisions in Kathyee Cotton Mills Ltd. v. R. Padmanabha
Pillai [1957 KLT 1175 (FB)], Buta Singh v. Union of India (1995 KHC 909) and Nawab
John v. Subramaniyan [(2012) 7 SCC 738] to drive his contention that the Courts
have the power to enlarge or extend the original time period fixed for payment of court
-fee, and if the circumstances for non-payment of court-fee were beyond the control of
the party or under unavoidable circumstances, the Court would be justified in an
appropriate case to exercise its discretionary power under Sec.149, after giving due
notice to the affected parties.
 SCC Online Web Edition, Copyright © 2021
Page 3 Friday, February 05, 2021
Printed For: Ishika Dikshit, School of Law, NMIMS
SCC Online Web Edition: http://www.scconline.com

-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
18. Going by the pleadings and materials on record and after verifying the order
sheet of the Court below, we are convinced that the appellant paid the requisite
balance court-fee within the stipulated time period as provided in Sec.4A of the Kerala
Court-Fees and Suits Valuation Act. However, there was an inadvertent mistake
committed by the Treasury, in handing over non-judicial stamp paper instead of
judicial stamp paper to the appellant, for which the appellant cannot be blamed. The
Court below accepted the stamp paper, without noticing the difference. It was later
that the Court below realised the mistake and returned the stamp paper to the
appellant, to produce the judicial stamp paper. There was no direction to the appellant
to produce the requisite stamp paper, within any time frame. The appellant diligently
approached this Court, and a direction was issued to the District Collector to exchange
the stamp paper. As soon as the stamp papers were received from the Treasury, the
appellant produced the same before the court below on 8.2.2018. Therefore on filing of
the requisite stamp paper, the appellant discharged the payment of balance court-fee.
The chapter should have been closed there.
19. It is then that the respondent filed the application and the impugned order
passed on 28.2.2019.
20. The Hon'ble Supreme Court in P.K. Palanisamy v. N. Arumughan [(2009) 9 SCC
173] has held that payment of court-fee is a matter between the State and the suitor.
If an application is to be entertained at the behest of a defendant for rejection of
plaint, several aspects are required to be considered. Likewise, non-availability of court
-fee stamp is a ground for extending the time for making up court-fee deficiency.
21. After re-appreciating the pleadings and documents on record and the
authoritative pronouncement of the Supreme Court, we hold that the impugned order
passed by the Court below is erroneous and improper. The Court below, after having
accepted the court-fee on 8.2.2018, ought not to have rejected the plaint at the
behest of the respondent on 28.2.2019. The Court below ought to have exercised its
discretion as provided under Sec.149 of the Code, in favour of the appellant, taking
into consideration the fact that there was no willful laches on the part of the appellant
and the mistake was committed by the Treasury.
22. In the result,
(i) we allow this appeal by setting aside the order rejecting the plaint for non-
payment of court-fee and restore OS No. 167/2014.
(ii) the parties are directed to appear before the court below on 6.1.2020, either in
person or through counsel.
(iii) we direct the order of attachment passed before judgment in IA No.
3538/2014, attaching the property of the respondent which was subsequently
vacated in view of the rejection of the plaint, but was undertaken by the counsel
for the first respondent before this Court on 1.4.2019 that the property will not
be alienated, shall stand revived.
(iv) the Court below shall make every endeavour to dispose of the suit, as
expeditiously as possible., and
(v) the parties are directed to bear their respective costs.
———
† Against the Order/Judgment in OS 167/2014 Dated 28-02-2019 of the Subordinate Judge, Irinjalakuda

Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.