Mr. Amit Gaurav, Adv v. CHANCHAL SINGH DEOL AND ORS

CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU TARA VITASTA GANJU, J.: (Oral)

1. The present Petition has been filed under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugning the order dated 09.08.2023 [hereinafter referred to as “Impugned Order”] passed by learned Civil Judge, North, Rohini Court, Delhi. By the Impugned Order, the Application under Order VII Rule 11 of the CPC filed by the Petitioner has been dismissed by the learned Trial Court.

2. The principal challenge made by the learned Counsel for the Petitioner is that the adequate Court fee has not been paid.

2.1 The contention of the Petitioner is refuted by the learned Counsel for the Respondents. He submits that the adequate Court fee was deposited on

09.08.2023, thus this objection of the Petitioner no longer survives.

3. So far as concerns the Impugned Order, the Petitioner had raised four Signature Not Verified Digitally Signed By:JAI NARAYAN Signing Date:02.05.2025 18:35:25 C.R.P. 336/2023 contentions before the learned Trial Court. Firstly, that the suit is under valued and the Court fee affixed with the Plaint is deficient. Secondly, the plaint does not disclose the cause of action. Thirdly, that the suit for injunction is not maintainable since the title of the Plaintiff is in dispute and lastly, that the Plaintiff did not approach the Court with clean hands.

4. The learned Trial Court has examined all the contentions and found that so far as concerns the aspect of deficient court fee, by an order dated

04.01.2016, learned Trial Court had directed the Respondents/plaintiff to pay the deficient court fees however, the order dated 04.01.2016 did not contain any direction to the Respondents to file the deficient court fees, failing which the plaint of the plaintiff would be rejected. It was held that the such direction is mandatory requirement of Order VII Rule 11 of CPC and thus in the absence of any such direction, the order dated 04.01.2016 cannot be interpreted to be read in the same manner as that of an order passed under Order VII Rule 11 (c) CPC.

4.1. By way of the Impugned Order learned Trial Court has also disposed off an application filed by the Respondents under Section 151 of CPC, whereby learned Trial Court has condoned the delay in filing of the deficient Court fee.

4.2. Section 149 of the CPC prescribes a discretionary power which empowers the Court to allow a party to make good any deficiency in the Court fee. In any event and as stated above, this ground no longer survives since deficiency in the Court fee has already been paid by the Respondents.

5. The Supreme Court in the case of P.K. Palanisamy v. N. Signature Not Verified Digitally Signed By:JAI NARAYAN Signing Date:02.05.2025 18:35:25 C.R.P. 336/2023 Arumugham & Anr1, has held that as and when the deficit court fee is paid, the same would be deemed to have been paid in the first instance. “15. It, however, does not mean that whenever a plaint is presented with deficit court fee, the same has to be rejected outrightly. Section 149 of the Code provides for the court's 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 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.” t instance.” instance.” 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.” [Emphasis Supplied]

5.1 The Supreme Court in the case of Ganapathy Hegde v. Krishnakudva & Anr2, has held that the proviso to Order VII Rule 11 CPC is attracted when the time for payment of deficit court fee has been fixed by the Court and the court fee is not supplied within the time appointed by the court. However, if the court fee is deposited there was no occasion for invoking provision of Order VII Rule 11 of CPC. The relevant extract of the Ganapathy Hegde case is below: “5. In our opinion, the High Court was not right in forming the opinion which it did. The proviso to Order 7 Rule 11 CPC is attracted when the time for payment of court fee has been fixed by the court and the court fee is not supplied within the time appointed by the court. In the case at hand, though the plaint as originally filed was not affixed with the requisite