- Bookmark
- Share
- CaseIQ
Vedapalli Suryanarayana v. Poosarla Venkata Sankar Suryanarayana And Sons
Factual and Procedural Background
These second appeals arise from two suits (O.S. Nos. 516 and 518 of 1970) filed by the same plaintiffs against the same defendants in the IInd Additional District Munsif, Visakhapatnam. O.S. No. 516 was filed on 5 April 1969 to recover Rs. 4,073.76 as principal and interest on a promissory note (Exhibit A-5). O.S. No. 518 was filed on 9 April 1969 to recover Rs. 2,909 as principal and interest on a promissory note (Exhibit A-6).
Both plaints were presented within the period of limitation but with only a nominal court-fee stamp (Re. 1). Under Order 7, Rule 11, Civil Procedure Code, the trial court returned each plaint and granted the plaintiffs a week's time to supply the requisite court-fee stamp. The plaintiffs supplied the deficit stamps within the time fixed by the court but after the expiry of the statutory period of limitation (the plaints were re-presented on 11 April 1969 and 15 April 1969 respectively).
The defendants pleaded that the re-presented plaints were barred by limitation, that Exhibits A-5 and A-6 were renewals of earlier promissory notes and lacked consideration, and that they were entitled to the benefits of Act IV of 1938. The trial court found for the plaintiffs on the factual questions (holding the notes were executed for cash consideration and were not renewals) and ruled that, because the deficit court-fee had been supplied within the time granted under Order 7, Rule 11, the plaints could not be rejected as time-barred. The trial court decreed both suits. The defendants appealed; the appellate court repeated and upheld the trial court's findings. The defendants then brought these second appeals.
Legal Issues Presented
- Whether a plaint presented within the period of limitation with an insufficient court-fee stamp, where the deficit stamp is supplied within the time granted by the court under Order 7, Rule 11 of the Civil Procedure Code but after the expiry of the period of limitation, is liable to be rejected as barred by limitation.
- Whether Exhibits A-5 and A-6 were renewals of earlier promissory notes and, if so, whether they were supported by consideration (a factual question raised by the defendants and decided by the courts below).
Arguments of the Parties
Appellants / Defendants' Arguments
- The plaints as re-presented (on 11 April 1969 and 15 April 1969) were presented after the period of limitation had expired and therefore the suits were barred by limitation.
- The promissory notes (Exhibits A-5 and A-6) were renewals of earlier promissory notes and were not supported by consideration, so the defendants sought reduction/defence on that basis.
- The defendants contended that the plaintiffs failed to file any formal application seeking grant of time to pay the full court-fee, and that the court erred in granting time without any application and without notice to the defendants.
- The defendants relied on certain authorities (including a Punjab High Court decision) which had held, in the context of appeals or otherwise, that a pleader or party who makes good the deficiency beyond the period of limitation may face dismissal as barred by limitation.
Respondents / Plaintiffs' Position (as reflected in the judgments below)
- The plaints were presented within the prescribed period of limitation and were properly valued; they bore some stamp, and the deficit stamp was supplied within the time fixed by the court under Order 7, Rule 11.
- By virtue of Section 149, Civil Procedure Code, if the court grants time and the deficit court-fee is paid within the time fixed, such payment has the same effect as if the fee had been paid in the first instance — therefore the suits are not barred by limitation even though the deficit was supplied after the statutory period expired.
- On the factual question, the promissory notes were executed for cash consideration and were not renewals of earlier notes — concurrent findings of fact recorded by the courts below.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mannan Lal v. Chhotka Bibi (Supreme Court) | Section 149 of the Code mitigates the rigour of Section 4 of the Court-Fees Act; deficiency of court-fee may be allowed to be made good within time fixed by the court and treated as if paid initially. | Used to support the proposition that where a plaint is presented within limitation with insufficient court-fee but the deficit is paid within the time granted by the court, the suit is not barred by limitation. |
| C. Padmanabha Ayyangar, Advocate, Madras (Madras High Court) | Criticised the practice of filing appeals or pleadings with a known deficit of court-fee hoping the court will later accept the deficiency; characterised such conduct as improper for practitioners. | Cited as a censure of the practice of knowingly presenting documents with deficit court-fee; considered in assessing professional conduct but not as a legal bar to suits where the statute and code permit relief. |
| Janaswami Venkataseethamma v. Sri Prativad Bhoyankaram Ranganarayakamma (Madras High Court) | Expressed that filing an appeal with a patently deficit court-fee, then seeking to excuse delay later, is not a practice to be tolerated; concerned an appeal where the deficit was not supplied within time. | Distinguished on facts: there the deficit was not supplied within the time prescribed; relied upon to demonstrate judicial disapproval of filing with deficit in certain circumstances. |
| Revenue Divisional Officer v. T. Lakshmi Narayana (Madras High Court) | Approved the Madras High Court observations disapproving the practice of filing with a deficit court-fee. | Referred to as an approving authority for the judicial admonishments against that practice. |
| Jai Bhagwan v. Om Parkash (Punjab High Court) | Second appeal dismissed on the ground that deficiency in court-fee stamp was made good beyond the period of limitation; highlighted that Order 7, Rule 11(c) does not apply to appeals (appeals are governed by Order 41). | Cited to show that appeals are governed differently from suits; the court used it to distinguish the law applicable to appeals (Order 41, Rule 3) from that applicable to plaints under Order 7, Rule 11. |
| Pamidimukkala Sitharamayya v. Ivaturi Ramayya (Madras High Court, Division Bench) | Held that provisions of Order 7, Rule 11(c) do not apply to appeals; appellate court may reject an appeal for unpaid full court-fee without calling appellant to pay the deficit; Order 41, Rule 3 deals with appeals. | Described as binding on the present court; used to distinguish appeals from suits for purposes of court-fee deficiency rules. |
| Assan v. Pathumma (Subramania Ayyar, J., Madras High Court) | Held that a plaint filed in time must be regarded as presented on the day it was filed even if it was unstamped or insufficiently stamped; Court-Fees Act and Limitation Act are distinct and do not control one another in this respect. | Relied upon to support the proposition that a plaint filed within limitation is deemed presented on filing and that stamping issues do not, by themselves, cause limitation to run against the plaint where the court grants time under the Code. |
| Gavaranga Sahu v. Botokriskna Potro (Full Bench, Madras High Court) | When a plaint is presented on insufficiently stamped paper within the prescribed period and the court gives time under the Code to make good the deficiency and the deficiency is supplied within that time (even if after the period of limitation), the suit is not barred by limitation. | Directly on point; treated as authoritative in the present case and adopted by the court to hold that the suits before it were not barred by limitation. |
Court's Reasoning and Analysis
The court's analysis proceeds from the statutory text and the facts as admitted. The applicable statutory provisions were Order 7, Rule 11(c) of the Civil Procedure Code (which permits rejection of a plaint where it is written upon paper insufficiently stamped unless the plaintiff, when required, supplies the requisite stamp-paper within time fixed by the court) and Section 149 of the Code (which empowers the court to allow the party at any stage to pay the requisite court-fee after institution of the suit and provides that such payment shall have the same effect as if paid in the first instance).
Key steps in the court's reasoning:
- Interpreting Order 7, Rule 11(c): The rule requires that some stamp must be present on the plaint; a totally unstamped plaint does not fall within clause (c). A plaint with some stamp may only be rejected for insufficiency if the plaintiff, after being required by the court, fails to supply the deficit within the time fixed by the court.
- Recognizing the court's discretion: The court emphasized that extension of the time fixed under Order 7, Rule 11 is discretionary; the plaintiff cannot claim extension as of right, but the discretion rests with the court and may be exercised for reasons recorded, including to avoid grave injustice.
- Applying Section 149: Section 149 allows the court to permit payment of the requisite court-fee after institution, and such payment is to have the same effect as if paid at the outset. The court read Section 149 as operating to mitigate the strict operation of Section 4 of the Court-Fees Act (which technically prohibits filing unless court-fee payable is paid), consistent with the Supreme Court's observations in Mannan Lal v. Chhotka Bibi.
- Weighing precedents and practice: The court reviewed authorities that condemn the practice of deliberately filing documents with known deficits (Madras High Court authorities), but distinguished those professional-ethics considerations from the statutory question whether a plaint presented with some stamp within limitation is time-barred when the deficit is later supplied within time granted by the court.
- Distinguishing appeals from suits: The court recognized and accepted the distinction that Order 7, Rule 11(c) concerns plaints (suits), whereas appeals are governed by Order 41 (and specifically Order 41, Rule 3), and that some authorities that dealt with appeals were therefore not directly applicable to suits.
- Applying binding precedents: The court accepted the binding force of the Madras full bench decision in Gavaranga Sahu v. Botokriskna Potro (and its approval by the Supreme Court in Mannan Lal), which holds that where a plaint is presented within the limitation period with insufficient stamp and the court grants time under the Code and the deficiency is made good within that time (even if after the expiration of the limitation period), the suit is not barred by limitation.
- Concurrent factual findings: On the question whether Exhibits A-5 and A-6 were renewals and whether they were supported by consideration, both courts below had concurrently found that they were not renewals and were supported by consideration. The present court treated those as concurrent findings of fact not open to re-examination in the second appeal.
On this statutory and precedential basis, the court concluded that the plaintiffs presented the plaints within the period of limitation with some stamp, the court gave time under Order 7, Rule 11, the deficit was supplied within that time (albeit after limitation expired), and therefore the suits were not barred by limitation.
Holding and Implications
Holding: The second appeals fail and are dismissed with costs. The court held that the suits were not barred by limitation where the plaints were presented within the prescribed period with some stamp and the deficit court-fee was made good within the time fixed by the court under Order 7, Rule 11 and by virtue of Section 149, such payment operates as if made at the outset.
Implications:
- Direct effect on the parties: The decrees in favour of the plaintiffs as recorded by the trial and appellate courts stand affirmed; the defendants' second appeals are dismissed with costs.
- Legal scope: The court applied established authority (including a binding full-bench decision of the Madras High Court and its approval by the Supreme Court) to hold that, for suits (as distinct from appeals), a plaint presented within limitation with some stamp is not rendered time-barred if the court grants time under the Code to make good the deficiency and the plaintiff complies within that time. The decision therefore confirms and applies existing precedent rather than announcing a novel rule.
- On professional practice: While the court acknowledged judicial disapproval in some authorities of the practice of filing documents with known deficits to rely on later indulgence, those professional-ethics observations did not override the statutory scheme permitting courts to grant time and validate subsequent payment of the deficit for suits.
(1) The main question that require decision in these cases is whether a plaint presented with the period of limitation with insufficient stamp and the deficit in the stamp duty made good within the time granted by the court under order 7, rule 11 of the code of civil procedure but after the expiry of the period of limitation, is liable to be rejected as barred by limitation.
(2) The facts giving rise to the question are these: the plaintiffs and the defendants in both the suits, o. S nos. 516 and 518 of 1970 on the file of the court of the iind additional district munsif, visakhapatnam are common. The plaintiffs filed o. S. No. 516 of 1970 to recover a sum of rs 4 073. 76 ps. Being the principal and interest due on a promissory note, exhibit a - 5 dated 9th april, 1976, executed by the defendants in favour of the plaintiffs for rs, 3,500 the suit o. S. No. 518 of 1970 was filed to recover a sum of rs. 2,909 being the principal and interest due on a promissory note exhibit a - 6 dated 11th april, 1966 executed by the defendants in favour of the plaintiff - firm for rs. 2,500. The suit o. S no. 516 of 1970 was filed on 5th april, 1969 with a nominal court - fee of re. 1. The plaint was returned on 7th april, 1969 under order 7, rule 11, civil procedure code, giving a week's time for the plaintiff to supply the requisite stamp. The deficiency in stamp was duly made good and the plaint was re - presented on 11th april, 1969. Apparently after the suit was barred by time. The suit o. S. No. 518 of 1970 was also presented with a nominal court - fee of re. 1 on 9th april, 1969. The plaint was returned on 11th april, 1969 under order 7, rule 11, civil procedure code, requiring the plaintiff to make good the deficiency in stamp within a week's time. The plaint was re - presented making good the deficiency in court - fee on 15th april, 1969, obviously after the suit promissory note was barred by time, both the suits were properly valued. The defendants mainly pleaded that the suit presented on 11th april, 1969 and 15th april, 1969 were barred by limitation and that the two promissory notes exhibits a - 5 and a - 6 were renewals of the earlier promissory notes and were not supported by consideration. It was also pleaded that the defendants were entitled to the benefits of act iv of 1938. The trial court after framing the necessary issues and on a consideration of theevidence adduced by the parties held that the suit promissory notes were executed for cash consideration, that they were not renewals of earlier debts and that therefore the suit debts were not liable to be scaled down. On the question whether the suits were barred by limitation as the suits were not presented with sufficient court - fee within time, the learned district munsif held that the deficiency in court - fee was made good within the time granted by the court and therefore, the plaints cannot be rejected. Accordingly, both the suits vjere decreed by the trial court. On appeal by the aggrieved defendants, the same contentions raised before the trial court were repeated and repelled by the appellate court. That in brief is the genesis ot these second appeals by the defendants.
(3) The central argument, if not the exclusive argument, in these appeals that dominated the debate before me was whether a suit presented with insufficient court - fee within the prescribed period of limitation and the deficit stamp supplied within the time allowed by the court but after the expiry of the period of limitation, is liable to be rejected as barred by limitation.
(4) The facts are not in disputes. The suit were presented with a nominal court - fee stamp within the prescribed period of limitation. They were properly valued. The court granted some time under order 7, rule 11, civil procedure code, to the plaintiff to pay the balance of court - fee. The deficiency in court - fee stamp was made good within the time allowed by the court, but after the expiry of the period of limitation. The question is whether the suits so presented were not barred by limitation. It may be seen that in both the cases the deficit court - fee was paid within the time allowed by the court but bevond the period of limitation. It is the contention on behalf of the appellants - defendants that the plaints were not presented with sufficient court - lee within the period of limitation and, therefore, the suits were barred by time. The answer to the question must be found from the provisions of order 7, rule 11, civil procedure code, and section 149, civil procedure code. Rule 11 (c) of order 7, which is material for our purpose readsas follows:
"11. The plaint shall be rejected in ths following cases. (a) ** ** (b) ** ** (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped and the plain tiff, on being required by the court to supply the requisite stamp - paper within a time to fixed by the court, fails to do so; (d) ** ** provided that the time fixed by the court for the correction of the valuation or 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 supplying the requisite stamp - paper 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."
(5) It is manifestly clear from clause (c) of rule 11 that there must be some stamp on the plaint and the plaint presented without any stamp cannot fall within the scope of the clause. A plaint presented with some stamp cannot be rejected under the rule for insufficiency of stamp unless the plaintiff is given an opportunity to supply the deficit stamp within the time fixed by the court. If he fails to do so, then alone the plaint is liable to be rejected however, still there is a discretion in the court to enlarge the time fixed by it to make good the deficit court - fee. No doubt, the plaintiff cannot claim as of right the extension of time fixed by the court. The discretion completely vests in the court. Section 149, civil procedure code, empowers the court to allow the party at any stage to pay the requisite court - fee after the institution of the suit and further provides that such payment shall have the same effect as if it has been paid in the first instance itself. The effect of the provision is that in a case where a plaint is presented with insufficient court - fee within the period of limitation, it will not be time barred provided the deficit court - fee is paid within the time granted by the court although by the time the deficit court - fee is paid, the period of limitation had expired. This provision, as observed by the supreme court in mannan lai v. Chhotkabibi mitigates the rigour of section 4 of the court - fees act, 1870 which provides that no document chargeable with court - fee under the act shall be filed or recorded in any court of justice, unless the court - fee payable in respect thereof is paid. But it should be made clear that the section does not confer any right no the party to supply the deficit court - lee at any stage of the suit it vests a discretion in the court to allow or not such time. When once the discretion is exercised and the time is granted and the payment is made within the time allowed, the suit will not be barred by limitation.
(6) It is, however, argued by the learned counsel for the appellant, that the plaintiff failed to file any application for grant of time to pay the full court - fee and that the court in any case was in error in granting time even without any application without notice to the defendants.
(7) The learned counsel invited my attention to the decision of the madras high court, in the matter of c. Padmanabha ayyangar, advocate, madras wherein the practice of the legal practitioners filing the memorandum of appeal on the last day of limitation knowing full well that it was understamped and hoping that the court would be persuaded to accept the deficiency later was deprecated as it was held to be not in accordance with the high traditions of the profession of an advocate. It was further observed that the high court should not tolerate practices of such nature. The question in that case was whether the conduct of the advocate in filing an appeal with deficit court - fee amounted to professional misconduct when the client had paid a sum of rs. 175 on account of the costs of the appeal, and the appeal was presented with deficit court - fee of rs. 50 adjusting a sum of rs. 100 towards his fee.
(8) In janaswami venkataseethamma v. Sri prativad bhoyankaram ranganarayakamma relied upon by the learned counsel, the appeal was not presented with deficit court - fee within the time prescribed by the court. There was a delay of two years in the representation and the delay was excused without notice to the other side. The learned judges observed:
"we cannot tolerate the practice of filing an appeal with a patently deficit court - fee simply because before the last date of filing the appeal the appellant is unable to secure enough money for payment of the full court - fee and then taking time to raise the deficit amount and get the delay excused as a matter of course".
(9) It is thus clear in that case, the deficit court - fee was not supplied within the time prescribed by the court, and the delay in representation was excused without notice to the othe'sidf. One other decision relied upon by the learned counsel was revenue divisional officer v. T. Lakshmi narayana in this case, the observations of the madras high court in the cases cited supra were referred to and approved.
(10) The punjab high court in jai bhagwan v. Om parkash, dismissed the second appeal on the ground that it was barred bv limitation inasmuch as the deficiency in court - fee stamp was made good beyond the period of limitation. These observations were made in a second appeal before the high court. The prov'sions of order 7, rule 11 (c) , civil procedure code, do not apply to appeals. They are governed by order 41 civil procedure code. Under order 41, rule 3 - a, civil procedure code, an appeal presented after the expiry of the period of limitation shall be accompanied by a petition supported by an affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient case for not preferring the appeal within such period. I am fortified in my view by a division bench decision of the madras high court.
(11) The madras high court in pamidimukkala sitharamayya v. Ivaturi ramayya ob - erved:
"the provisions in order 7, rule 11 (c) , do not apply to appeals. The appellate court is entitled to reject an appeal in which the full court - fees have not been paid without calling upon the appellant to pay the deficient court - fee. So far as memoranda of appeals are concerned, express provision is made in order 41, rule 3, for their rejection on the grounds stated in that rule."
(12) The division bench decision is binding upon me.
(13) It would now be relevant to refer to two rulings of the madras high court which are directly on the question involved in these cases. The earliest decision is of subramania ayyar, j. , in assan v. Pathumma wherein the learned judge held: "that the said plaints having been filed in time, the fact that they were not duly stamped or were entirely unstamped when the period of limitation had expired did not render them time - barred; since the plaint must be regarded as having been presented on the day upon which they were filed. It cannot be inferred from the 'limitation act, 1877, that the word "plaint" in law means merely "a private memorial tendered to a court in which the person sets forth his cause of action; the exhibition of an action in writing". Whether any court - fee is payable in an action commenced by the plaint, and if so when and how it should be paid, are matters that are foreign to the question whether the document is a plaint are not. The court - fees act and the limitation act are entirely different in their purpos" and scope and neither can be taken to control or qualify the other. "
(14) After an exhaustiv consideration of all the decisions of the several high courts, the full bench in gavaranga sahu v. Botokriskna potro observed:
"when a plant is presented on a paper insufficiently stamped, within the prescribed period of limitation, and the time is given by the court under section 54 (d) of the code of civil procedure to make good the deficiency and the deficiency is supplied within the time affixed by the court, but after the period of limitation expired, the suit is not barred by limitation."
(15) That is exactly what happened in the two cases now before me. This full bench decision of the madras high court was approved by the supreme court in mannan lal v. Mst. Chhotaka bibi observed:
"apart from the decisions bearing on the point, there can in our opinion be no doubt that section 4 of the court - fees act is not the last word on the subject and the court must consider the provisions of both the act and the code to harmonise the two sets of provisions which can only be done by reading section 149 as a proviso to section 4 of the court - fees act by allowing the deficiency to be made good within a period of time fixed by it."
(16) Therefore, i have no hesitation in holding that the suits were not barred by limitation.
(17) On the question whether exhibits a - 5 and a - 6 were renewals of earlier promissory notes, both the courts of fact on a consideration of the evidence held that they were not the renewal promissory notes and that they were executed bv the defendants and supported by consideration. This is a pure finding of fact concurrently recorded by both the courts below, the correcfness of which cannot be permitted to be canvassed in a second appeal.
(18) In the result, the second appeals fail and are accordingly dismissed with costs. Appeals dsimissed.
Alert