A. NAWAB JOHN & Ors. v. V.N. SUBRAMANIYAM

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 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. D 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. 0 A B

#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 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 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 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 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: 1961 SCR 1015 - relied on. SL Lakshmana Ayyar vs. TSPLP Palaniappa Chettiar AIR 1935 Mad.927 - referred to. A B c D E

#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 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 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 F 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. 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- 0 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 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 E