M/S. Sahara India Airlines Ltd v. R.A Singh & Anr. S

Arun Kumar, J.:— This is an appeal against an order dated 14th May 1996 passed by a learned Single Judge of this Court granting exemption to the plaintiffs from paying court fee and directing that in case the plaintiffs succeed in the suit they will pay court fee from the decretal amount. This order was reiterated by the same learned Single Judge on 6th February 1997 observing that it merely postponed the date for making good the deficiency of court fee. It was further observed that the payment of court fee is a matter between the State and the litigant and the defendant cannot have any valid grievance on account of non-payment of court fee by the plaintiff.

2. Briefly the facts are that the plaintiffs in the suit (respondents herein) are the parents of a youngman named Pramod Singh who was employed as a pilot with the defendant in the suit, i.e the appellants in this appeal (hereinafter the parties will be referred to as plaintiffs and defendants as in the original suit) Pramod Singh, son of the plaintiffs was put on a training flight on 8th March 1994 alongwith two other pilots. During the course of the training flight the aircraft allegedly went out of control and crashed. Pramod Singh received fatal injuries in the incident. The other two trainee pilots as well as the instructor also died in the said accident. There were some other casualties also. The plaintiffs filed the present suit for recovery of Rs. 83,32,800 against the defendant on account of the sad death of their son Pramod Singh. As per the provisions of Court Fees Act and the Schedule appended thereto as applicable to Delhi, the requisite court fee on the plaint, according to the plaintiffs worked out to Rs. 83,795.32p. The plaintiffs stated in the plaint that they did not have sufficient funds to deposit the court fee and they deposited a sum of Rs. 21,864.80p. only towards court fee on the plaint and filed an application for exemption from payment of court fee. The application which was filed along with the plaint for this purpose was registered as I.A No. 3251/96. The application purports to be under Section 94 read with Section 151. Code of Civil Procedure. In the application the plaintiffs admitted receipt of a ‘small sum’ towards interim relief from the defendant. The plaintiffs further stated in the said application that they have no source of income to enable them to pay the entire amount payable as court fee. In para 6 of the application the plaintiffs stated that on account of lack of means to pay the requisite court fee, the plaintiffs had affixed court fee of Rs. 21,865 on the plaint. They repeated that they do not have the means to pay the balance court fee of Rs. 61,931 on the plaint. Accordingly the plaintiffs prayed that the Court be pleased to:—

“exempt the plaintiffs from paying the deficient court fee of Rs. 61,931 on the plaint in the foregoing and circumstances.”

3. The order impugned in the present appeal was passed by the learned Single Judge on 14th May 1996. The plaintiffs were exempted from paying the balance amount of court fee subject, however, to the direction that in the event of their success in the suit, they would pay the requisite court fee from the decretal amount.

4. The learned counsel for the appellant has challenged the aforesaid order on the ground that the same is contrary to the law. In support of this submission the learned counsel has invited our attention to the various relevant provisions contained in the Code of Civil Procedure as also in the Court Fees Act. It was submitted that a receipt of Rs. one lac from the appellant was not denied by the plaintiffs. The learned counsel for the plaintiffs did not dispute this assertion. In the light of this admission on the part of the plaintiffs it was urged that the plaintiffs could not plead lack of means to pay the requisite court fee as a ground for seeking exemption to pay the requisite court fee. Secondly, it was contended that the Court had no power to grant exemption from payment of court fee. The only other course which could be followed by the plaintiffs was to approach the Court as indigent persons under Order XXIII, Code of Civil Procedure. The said provision in the Code was specifically meant to safeguard the interests of persons who do not have sufficient means to pay the prescribed court fee on the plaint. Order XXXIII envisages an inquiry about the financial condition of the applicant so as to find out whether he/she has sufficient means to pay the prescribed court fee. The learned counsel for the appellants submitted that the plaintiffs were conscious of the fact that in the event of an inquiry into their means to pay the prescribed court fee, they would be faced with the fact about receipt of Rs. one lac from the defendant on account of the fatal accident involving their son. The receipt of this amount would militate against their assertion of lack of means to pay the prescribed court fee. For this reason the plaintiffs did not choose to take recourse to Order XXXIII of the Code of Civil Procedure, according to the learned counsel for the appellant.

5. It was also contended on behalf of the appellant that under Order VII Rule 11, Code of Civil Procdure an insufficiently stamped plaint was liable to be rejected. Although the said provision envisages grant of further time to a plaintiff to make up the deficiency in court fee, yet the proviso contained in Rule 11 puts a heavy burden on the plaintiff for making out a case for extension of time. The Court has to be satisfied by the plaintiff that be was prevented by any cause of exceptional nature before, the extension of time can be granted and the Court has to record reasons for granting exemption. Thus according to the appellant there is no power with the Court to grant exemption from payment of court fee, the only power is to extend time in making up deficiency in court fee and that power also has to be exercised not in routine but in cases of exceptional nature.

6. On the other hand the learned counsel for the respondents (plaintiffs) relied on Section 94(e) and Section 149 of the C.P.C to urge that the Court had the power to grant exemption in such matters and, therefore, the discretion was validly exercised in favour of the plaintiffs by the Court while passing the order in appeal. The learned counsel for the respondents also urged that the appeal was not main-mainable in view of the fact that the order under appeal does not affect the rights of the parties and as such was not appealable.

7. We have considered the rival contentions of the learned counsel for the parties. In our view the first and foremost question for consideration is the power of the Court to grant exemption from payment of the prescribed court fee. In this connection the relevant provisions of law are Section 4 of the Court Fees Act and Order VII Rule 11 (c), C.P.C Section 4 of the Court Fees Act is couched in a language which shows that payment of court fee prescribed in the First or Second Schedule to the Act is mandatory before a plaint or other documents or instrument referred to in the section can be proceeded with. Section 4 as applied to State of Delhi covers the ordinary as well as extraordinary original jurisdiction of the Delhi High Court. Further, as applicable to Delhi, Section 4 of the Court Fees Act reads:—

“No document of any of the kinds specified 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, the High Court of Delhi in any case coming before that Court in exercise of its ordinary or extraordinary original civil jurisdiction”.

8. It is not in dispute that ad valorem court fee is payable on the plaint as in the present case and in fact the plaintiffs have stated in the plaint itself the amount of prescribed court fee in this behalf. The language of Section 4 puts a complete embargo on the power of the Court to proceed with or act upon a document of any kind including a plaint in the suit unless it bears the prescribed court fee.

9. This brings us to the Code of Civil Procedure which governs the procedure for trial of the suits of civil nature. According to Sub-clause (c) of Order VII Rule 11 of the Code, “where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so”, the plaint shall be rejected by the Court. There is a proviso according to which “the time fixed by the Court for the correction of the valuation of supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff”. Thus, under Order VII Rule 11 if the Court is satisfied and after recording reasons for doing so the Court may in cases of exceptional nature extended time when it feels that refusal to extend time would cause grave injustice to the plaintiff. This power is to be exercised in cases of exceptional nature and not in routine. The power is confined to extend time for making deficiency in Court fee and nothing more.

10. These provisions of the Court Fees Act and the Code of Civil Procedure, in our view, do not leave any power with the Court to grant exemption from payment of prescribed court fees. The only power which can be exercised in cases of grave injustice or hardship is to extend time for payment of court fee and if the plaintiff fails to do the needful even within the extended time, the plaint is liable to be rejected. The way proviso contained in Order VII Rule 11 C.P.C is worded, even the power to extend time for payment to pay requisite court fee has been restricted to a large extent which means that in any case there is no power to grant total exemption from payment of court fee. Of course, in the impugned order it has been observed that on the success of the plaintiff the balance amount of requisite court fee can be deducted from the decretal amount, yet one cannot lose site of a possibility of failure of the planitiffs in the suit. In that event how will the court fees be realised? The law does not envisage such a situation. The nature of the suit before the Court attracts the appropriate provision of the Court. Fees Act and there can be no escape from payment of the requisite court fee.

11. The only other course which is open to a plaintiff in case of lack of means to pay the requisite court fee is to approach the Court under Order XXXIII of the Code of Civil Procedure as an indigent person. In that event an inquiry into the means of the applicant is envisaged and after the Court is satisfied that the plaintiff does not have sufficient means to pay the requisite court fee, his petition can be tried as a suit under Rule 10. Where such a plaintiff succeeds in the suit, the Court shall calculate the amount of court fee payable by the plaintiff as if he had not approached the Court as an indigent person. Such amount is recoverable by the State Govt. from the party against whom the plaintiff obtains a decree in the suit, the amount being first charge on the subject matter of the suit. Under Rule 11 where the plaintiff fails in the suit or the suit is otherwise withdrawn or dismissed on account of some default on the part of the plaintiff, the Court shall order the plaintiff to pay the court fee which would have been payable by him if he was not permitted to sue as an indigent person.

12. Thus, Order XXXIII C.P.C is a special provision for indigent person. In the present case the plaintiffs have not come under Order XXXIII of the Code and, therefore, they cannot avail of this special procedure contained in the said provision. The effect of the impugned order is that without even invoking the procedure prescribed under Order XXXIII C.P.C and without going through the inquiry into the means of a plaintiff approaching the Court under that provision, the plaintiffs have got the benefit contained in that provision. A question may arise as to whether the benefit of Order XXXIII C.P.C can be extended to any plaintiff like the plaintiffs in the present case, even though he/she does not chose to invoke the said procedure. The answer is obviously in the negative—without invoking the special provision and complying with the special requirements contained in the Rules framed under Order XXXIII C.P.C no plaintiff can seek to take advantage of this special procedure. There are so many formalities and requirements associated with an application for permission to sue as an indigent person under Order XXXIII C.P.C and they cannot be allowd to be by-passed.

13. Thus, when a plaintiff approaches the Court in the normal course, i.e without recourse to the provisions of order xxxiii c.p.c he/she has to comply with the relevant provisions of the Court Fees Act and the Code of Civil Procedure. In other words a suit cannot be tried without payment of the prescribed court fee. It was held by a Division Bench of this court in Mangal Sen… v. The Union Of India…. AIR 1970 Delhi 44(1), that before a document can be filed in the High Court it must bear the court fee chargeable within the First Schedule or Second Schedule of the Court Fees Act. Of course as envisaged in the proviso to Order VII Rule 11 time for making up the deficiency in court fee can be extended by the Court subject to limitations contained in the proviso. But that provision does not envisage an order that the payment of court fee be exempted and court fee may be deducted out of the decretal amount in the event of the success of the plaintiff which means that the suit proceeds to trial and to final decision without payment of the prescribed court fee.

14. This brings us to Sections 94 and 149 C.P.C relied upon by the learned counsel for the respondents. Section 94 occurs in PART VI of the Code and the heading is SUPPLEMENTAL PROCEEDINGS. Section 94 starts with the words—

“In order to prevent the ends of justice from being defeated the Court may if it is so prescribed.—

* * * *

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.”

15. This power of the Court, supplemental as it is described in the Code itself, is a power which can be invoked by the Court in order to meet the ends of justice. This power cannot be exercised in derogation of or contrary to the specific mandate contained in the Code itself. It is settled law that when there are specific provisions contained in the Code regarding a matter under consideration, the general power as contained in either Section 151 C.P.C or other provisions like Section 94 C.P.C, cannot be exercised. In the present case the situation is worse because the general power is sought to be invoked contrary to the specific provision contained in the Code. In Ram Karan Das v. Bhagwandas, AIR 1965 sc 1144(2) section 151(2) was sought to be invoked where the specific provision under Order XXXVII Rule 4 C.F.C was attracted. It was held that inherent powers are to be exercised by the court in very exceptional circumstances for which the Court did not lay down any procedure. Express provision qua the matter in issue in that case for setting aside a decree passed under Order XXXVII C.P.C was contained in Rule 4 and, therefore, it was held that there was no scope to resort to Section 151 C.P.C for selling aside such a decree. Thus, we find no merit in the contention that Section 94 C.P.C can be resorted to in the facts of the present case.

16. Next we have to examine how far Section 149 C.P.C can help the plaintiffs in the facts of the present case. Section 149 is reproduced as under:—

“Power to make up deficiency of court-fees. 149. Where the whole or any part of any fee prescribed for any document 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.”

17. This provision is meant to give temporary relief to a plaintiff where for no fault of his, he is unable to affix the required court fee on the plaint. This may be on account of paucity of time in obtaining the requisite court fee, closure of the treasury where the court fees is available, on account of some unforeseen reason, nonavailability of the requisite amount of court fee in the treasury etc. etc. This provision does not clothe the Court with the power to exempt payment of court fee. Further, the power under Section 149 C.P.C cannot be exercised contrary to the specific mandate contained in the Court Fees Act and Order VII Rule 11 C.P.C Section 149 is a sort of transitory provision to take care of an interim period. In the present case the reason for not paying the prescribed court fee as given by the plaintiffs is their inability to pay the same on account of paucity of funds or lack of means. It was held in Buta Singh (Dead) By Lrs. v. Union Of India, (1995) 5 SCC 284(3) that “mere poverty or ignorance or inability to pay the court fee at the time of presenting the appeal is not always a good ground for indulgence under Section 149”. In Mannan Lal v. Mst. Chhotka Bibi, AIR 1971 SC 1374(4), it was held that Section 149 C.P.C mitigates the rigour of Section 4 of the Court Fees Act and it is for the Court to harmonise the provisions of both the Court Fees Act and C.P.C by reading Section 149 C.P.C as proviso to Section 4 of the Court Fees Act and allowing the deficit to be made good within a period of time fixed by it. Thus, we are of the considered view that Section 149 C.P.C does not empower the Court to pass an order exempting the plaintiffs from payment of requisite court fee and directing that on the success of the plaintiffs the requisite balance of court fee be deducted from the decretal amount. Such a power can be found only where Order XXXIII C.P.C applies and nowhere else.

18. Lastly, we would like to note the argument advanced on behalf of the respondents by their learned counsel about the maintainability of the present appeal. She urged that the appeal was not maintainable because neither under Order XLIII C.P.C such an appeal could be filed nor under Section 10 of the Delhi High Court Act such an appeal was maintainable. The Supreme Court has held in Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786 (5) and Jugal Kishore Faliwal v. S. Sat Jit Singh, (1984) 1 SCC 358(6), that where an order affects the rights of the parties and results in injustice to a party the same can be appealed against. The impugned order in the present appeal clearly falls within the ambit of the law laid down by the Supreme Court. Therefore, in our view the appeal is maintainable. Besides, this the appeal raises an important question of law.

19. This appeal is accordingly allowed. The impugned order dated 14th May, 1996 exempting the respondents from paying the court fee is quashed. The matter be placed before the learned Single Judge. The learned Single Judg will consider the appropriate time to be granted to the plaintiffs to make up the deficiency in court fee and thereafter proceed further with the suit in accordance with law. No costs.

D.V