Manmohan Singh, J.— The plaintiff has instituted the present suit for recovery of Rs. 39,23,466/- from the defendant on 23rd October, 2002. Defendant No. 1 along with his written statement filed the counter claim on 21st April, 2004 against the plaintiff for a sum of Rs. 4,40,000/-. In Para 11 of the counter claim, the defendant has mentioned that the requisite court fee on the said amount has been affixed with the counter claim.
2. The present application being I.A No. 3762/08 has been filed by the plaintiff under Order 7 Rule 11 read with Section 151 CPC for rejection of the counter claim filed by defendant No. 1. In reply to this application, the defendant has raised the preliminary objection that the application filed by the plaintiff under order 7 Rule 11 is not maintainable as the defendant No. 1 has already paid the court fee amounting to Rs. 6,640/- on the counter claim on 24th September, 2008.
3. Learned counsel for the plaintiff/applicant contends that the counter claim filed by the defendant cannot be entertained as the defendant has not paid the court fee along with the counter claim nor subsequently sought any permission from the court to pay the same. The court fee paid after the expiry of about 5 years has no application as the counter claim on the date of payment of court fee has already become time barred.
4. Learned counsel has argued that it was the duty of the defendant to pay the court fee along with the counter claim and further that the counter claim which has been filed by the defendant under the provisions of Order 8 Rule 6-A, CPC itself is a suit and in case no court fee is paid, the said counter claim cannot be treated as a suit or counter claim in the eyes of the law.
5. The counsel has also argued that under the provisions of Order 7 Rule 11(c) of the Code of Civil Procedure, the deficient court fee can be paid by a party if necessary application in this regard is moved by a party to pay the court fee for extension of time but in the present case there was no court fee at all paid by the defendant along with the counter claim and, therefore, the question of payment of deficient court fee under the provisions of Order 7 Rule 11(c) Code of Civil Procedure does not arise.
6. Lastly the counsel has referred to the provisions of Order 4 Rules 1, 2 and 3 of the Code of Civil Procedure as well as Section 3 of the Limitation Act in support of his submissions.
7. I have considered the legal submissions made by learned counsel for the plaintiff. The fact of the matter is that the counter claim in this matter was filed by the defendant on 21st April 2004 and in Para 11 of the same, a statement has been made that the requisite court fee has been affixed with the counter claim.
8. Learned counsel for the defendant has argued that it is a bona fide lapse on the part of the defendant that he has not affixed the court fee otherwise the defendant had the intention to pay the same. He has also argued that as soon as it came to the knowledge of the defendant that the court fee has not been affixed with the counter claim, the same was paid immediately on 24th September, 2008.
9. The second important fact in the matter is that the title of the counter claim has been mentioned along with the written statement as of today. The counter claim has not been numbered as per the rules.
10. It is also a matter of fact that the Registry has not raised any objection about the non payment of the court fee with the counter claim. In view of above, counsel for defendant submits that the pleadings about the counter claim are sufficient and the said pleadings have to be treated as counter claim, since the court fee has already been paid, therefore, the application filed by the plaintiff is made with mala fide intention and is not maintainable.
11. No doubt, the plaintiff can blame the defendant for not paying the requisite court fee when the statement has been made by the defendant that the court fee has been affixed with the counter claim but at the same time, I feel that the Registry is also at fault as no objection was raised by the Registry for non filing of the court fee by the defendant. The Registry ought to have fix a date for payment of court fee. Under the said situation, this court is expected to do justice and decide the controversy between the parties. In case the Registry had fixed a date for payment of court fee, the present problem ought not have arisen between the parties and the question of filing the present application would not have arisen at all.
12. Under Order 7 Rule 11, Code of Civil Procedure, the Legislature has provided one opportunity to the party to pay the deficient court fee in order to cure the defect on the question of court fee and counter claim. Therefore, this court cannot take a harsh view considering the overall circumstances of the case.
13. Another contention of the plaintiff is that on the date of paying the court fee the counter claim itself was barred by time and it cannot be entertained as counter claim. In my view, the said submission of the learned counsel for the plaintiff has no force as the counter claim was filed along with the written statement which was within time. The counter claim in a way is set up in the written statement and since it is not disputed that the written statement is not barred by time, therefore, it is held that the counter claim which is set up along with the written statement is not barred by limitation.
14. In the instant case, as already discussed that the written statement does contain the counter claim and since the defendant No. 1 has now paid the court fees, therefore, the application has no force. It is, therefore, dismissed. Since the defendant No. 1 has now paid the court fee, the Registry is directed to register the said counter claim within two weeks from today. I.A stands disposed of.
CS(OS) No. 2012/2003
List the matter on 11th May, 2009 before the Joint Registrar, the date already fixed.