Transfer pendente lite remains valid subject, of course, to the result of the suit.

 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 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. 

“The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court.”  

[Sanjay Verma v. Manik Roy, AIR 2007 SC 1332, para 12] 

C.A. No. 4838 of 2012 - A. Nawab John Vs. V.N. Subramaniyam, 2012 (3) KLT SN 57 : (2012) 7 SCC 738 : JT 2012 (6) SC 450 : 2012 (6) SCALE 143

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

   CIVIL   APPEAL   NOS.       4838-4840          OF   2012

[Arising out of SLP (Civil) Nos.20349-20351 of 2007]

A. Nawab John & Ors.     ….Appellants

Versus

V.N. Subramaniyam     ….Respondent

  J  U  D  G   M  E  N  T

   Chelameswar,   J.

Leave granted.

2. The 5 petitioners herein filed O.S.No.100 of 2004,

against one Sengoda Gounder, who is not a party to the Special

Leave Petition, essentially, for the specific performance of a

registered agreement dated 22-03-1995, of sale of the suit

scheduled land admeasuring approximately Acs.2-00 and delivery of

possession of the same; in the alternative, it was prayed that the

defendant be directed to refund the amount of Rs.12,15,125/- with

interest, etc.   

3. The parties are referred to in this Judgment as they are

arrayed in the abovementioned Suit.

4. It is the case of the Plaintiffs that the abovementioned

defendant was indebted to one Mr. Radhakrishnan and also to the

Tamil Nadu Industrial Investment Corporation Limited (for short

‘TNIIC”).  It is alleged in the plaint that Sengoda Gounder wanted to

clear the debts to the abovementioned two persons before the

property is actually conveyed to the plaintiffs.  For the said purpose,

Sengoda Gounder collected an amount of Rs.12,15,125/- in

instalments from the plaintiffs.  In spite of receipt of such payment,

Sengoda Gounder did not execute the sale deed, on some pretext or

other.  Therefore, the Suit.

5. During the pendency of the Suit, the sole respondent

herein, filed an Application praying that he be impleaded as a party

defendant to the said Suit, on the ground that he purchased the suit

scheduled property on 08-03-1999 for a consideration of

Rs.3,93,560/-.  It appears from the record that the said I.A. was

allowed and the sole respondent herein was impleaded as the

second defendant in the abovementioned Suit.  Consequent upon

the said impleadment, the plaint came to be amended by inserting

para 10A, the details of which are not necessary for the present

purpose.

6. Initially, the Suit was valued at Rs.13,31,663-00 ps. on

which the plaintiff calculated that a court-fee of Rs.99,875-75 ps. is

payable, under Section 42 of The Tamil Nadu Court Fees and Suits

Valuation Act, 1955” (hereinafter referred to as the ‘Tamil Nadu Act’

for the sake of convenience).  The plaint was presented on 20-08-

1998 with deficit court-fee.  Only an amount of Rs.2,000/- was

paid.  The plaint was returned by the Court on

24-08-1998 with various objections including the deficiency in the

court-fee.  The plaintiffs represented (1

st

representation) the plaint

after a long delay on 03-05-2002 along with a court-fee of

Rs.96,000/-, with an Application to condone the delay in

representation.  On 03-06-2002, the plaint was again returned,

inter alia, on the ground that there still was a deficit of the courtfee.  Eventually, the plaint was represented on 22-01-2004

representation) remitting a further amount of Rs.2,875/- courtfee along with Applications to condone the delay in representation,

etc.  On the same day, the plaint was once again returned with

certain objections.  On 09-04-2004, the plaint was once again

represented 

representation) with an application to condone the

delay of 70 days in representation.  On 15-04-2004, the Suit was

numbered as O.S.No.100 of 2004 by the Court.  On 05-10-2004,

Sengoda Gounder was set ex parte.  On the same day, however,

the sole respondent herein filed implead-petition in I.A.No.1532 of

2004, which was allowed by an order dated 09-03-2005.

7. The respondent herein filed C.R.P.(PD) No.658 of 2006,

before the High Court of Madras, challenging the decision of the

Trial Court in I.A.No.76 of 2004 to condone the delay of 1328 days

in the first of the abovementioned three representations of the

plaint.  Another C.R.P.(PD) No.657 of 2006 was filed challenging the

order of the Trial Court I.A.No.75 of 2004, dated 22-01-2004, by

which, the Trial Court condoned the delay of 585 days in the second

of the abovementioned representations.

8. During the pendency of the abovementioned two

C.R.Ps., the 2

nd

defendant (sole respondent herein) filed his written

statement and also filed Application in I.A.No.3 of 2006, invoking

Order-7 Rule-11 of the Code of Civil Procedure to reject the plaint.

A week thereafter, on 29-12-2005, the plaintiffs filed I.A.No.1 of

2006, seeking amendment of the plaint.

9. I.A.No.1 of 2006 filed by the plaintiffs was allowed by

an order dated 16-02-2006.  Aggrieved by the same, the sole

respondent carried the matter in Revision to the High Court in

C.R.P.(PD) No.769 of 2006, which was dismissed by an order dated

25-04-2006.  I.A.No.3 of 2006 filed by the 2

nd

defendant/

respondent herein, was dismissed by an order dated 31-03-2006,

and a Revision in C.R.P.(PD)No.797 of 2006, filed challenging the

same.         

10. Eventually, in C.R.P.(PD)No.797 of 2006 along with

C.R.P.Nos.658 & 657 of 2006, were heard together and allowed by

the High Court by a common order dated 22-12-2006, setting aside

the orders passed in I.A.Nos.76, 75 of 2004 and 3 of 2006. The

operative portion of the order is as under:

“In  the  result,  all  the  three  CRPs  are  allowed.   The

numbering  of the  suit  No. 100  of 2004  by the  District

Court, Erode and renumbering the same as O.S.No.4 of

2005 on its transfer by the Additional District Judge (FTCIV), Erode at Bhavani is set aside the consequently the trial

Court is directed to struck off the said suit from its file.”

Hence, the S.L.P.

11. Initially, the Suit was presented before the Sub-Court,

Bhavani, but finally represented (3

rd

representation) to the District

Court, Erode, due to the change brought about in the pecuniary

jurisdiction of the Civil Courts by Tamil Nadu Act No.1 of 2004,

which came into force w.e.f., 29-12-2003 and numbered as

O.S.No.100 of 2004.  Subsequently, the same was transferred to

Additional  District Court (FTC-IV), Bhavani and renumbered as

O.S.No.4 of 2005.  The initial presentation and the 1

st

two

representations, mentioned earlier, of the Suit were to the Sub

Court, Bhavani, and the final representation was to the District

Court, Erode.  The delay in representation, on the 1

st

two occasions,

was condoned by the Sub Court, Bhavani.

12. The 2

nd

defendant made the following submissions

before the High Court and before us also:

(1) that the Sub Court, Bhavani lacked

jurisdiction to consider and order the 1

st

of the

two delay condonation petitions (I.A.Nos. 76

and 75 of 2004) in view of the fact that there

was no Suit pending, in the eye of law, before

the Sub Court as on 22-01-2004 (the date on

which the abovementioned IAs were allowed)

because of the Amendment to the Civil Courts

Act;

(2) the plaintiffs did not invoke Section 149 of

the Code, while seeking the condonation of

delay in representing the plaint and making

good the deficit court-fee, therefore, the plaint

ought to have been rejected;  

(3) The delay in representation was condoned

without notice to the defendant.  In view of the

decision of the High Court of Madras in K.

Natarajan v. P.K. Rajasekaran, (2003) 2 M.L.J.

305, such a procedure, when the court fee is

paid beyond the period of limitation for filing

the Suit, is illegal; and

(4) the Trial Court mechanically condoned the

delay without appreciating the legal position

that, condonation of a huge delay without any

proper explanation is uncalled for and militates

against the provisions of the C.P.C.      

13. Whereas the plaintiffs argued before the High Court;

(1) that the 2

nd

defendant is a purchaser

pendente lite (plaint initially presented on 20-

08-1998 and the 2

nd

defendant, admittedly,

purchased the suit scheduled property on 08-

03-1999) and, therefore, has no locus standi to

contest the suit in view of the fact that the 1

st

defendant chose not to contest the suit;

(2) the sale in favour of the 2

nd

defendant is

sham and nominal; and

(3) payment of court-fee is purely a matter

between the State and the plaintiffs and,

therefore, the 2

nd

defendant has no locus to

raise any objection on that count.    

14. In order to examine the correctness of the High Court’s

findings, two preliminary questions / objections raised by the

plaintiffs regarding the locus standi of the 2

nd

defendant to maintain

the three Civil Revision Petitions, which were disposed of by the

common Judgment under challenge, is required to be examined

first.

15. The first preliminary objection is that the 2

nd

defendant,

being a pendente lite purchaser, has no locus standi to question the

correctness of the decision of the Trial Court to condone the delay in

representation of the plaint.  To understand the legal rights and

obligations of a pendente lite purchaser, it is necessary to examine

the jurisprudential background of the doctrine of lis pendens and its

statutory expression.

16. This Court in Jayaram Mudaliar v. Ayyaswami and

Others, (1972) 2 SCC 200 (paras 42 to 44) quoted with approval a

passage from the Commentaries on the Laws of Scotland, by Bell,

which explains the doctrine of lis pendens:

“43. …………..  Bell, in his commentaries on the Laws of

Scotland,  said  that  it  was  grounded  on  the  maxim  :

“Pendent elite nibil innovandum”.  He observed:

“It is a general rule which seems to have

been  recognised  in  all  regular  systems  of

jurisprudence, that during the pendence of

an action, of which the object is to vest the

property  or  obtain  the  possession  of  real

estate, a purchaser shall be held to take that

estate  as  it  stands  in  the person  of the

seller, and to be bound by the claims which

shall ultimately be pronounced.”

Section 52

∗

of the Transfer of Property Act, (for short ‘the T.P.Act’)

incorporates doctrine of lis pendens and it stipulates that 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



Section 52 of the Transfer of Property Act

“52. Transfer of property pending suit relating thereto.—During the pendency in any

court having authority within the limits of India excluding the State of Jammu and Kashmir or

established beyond such limits by the Central Government of any suit or proceeding which is not

collusive and in which any right to immovable property is directly and specifically in question, the

property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as

to affect the rights of any other party thereto under the decree or order which may be made therein,

except under the authority of the court and on such terms as it may impose.

Explanation.—For the purposes of this section, the pendency of a suit or proceeding

shall be deemed to commence from the date of the presentation of the plaint or the institution of

the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has

been disposed of by a final decree or order and complete satisfaction or discharge of such decree

or order has been obtained, or has become unobtainable by reason of the expiration of any period

of limitation prescribed for the execution thereof by any law for the time being in force.”

any other party to such a suit or proceeding.  The Section is based

on the principle:

“………..that it would plainly be impossible that any action

or  suit  could  be  brought  to  a  successful  termination,  if

alienations  pendente  lite were  permitted  to  prevail.   The

plaintiff would be liable in every case to be defeated by the

defendant’s  alienating  before the judgment  or decree,  and

would  be  driven  to  commence  his  proceedings  de  novo,

subject to be defeated by the some course of proceeding.”

Belkamy v. Subina (1857) De. GEJ 566 at 588.

Quoted with approval by this Court in Vinod Seth v. Devinder Bajaj

(2010)8 SCC 1.

17. 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 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.   

 “The mere pendency of a suit does not prevent one of the parties

from dealing with the property constituting the subject-matter of

the suit. The section only postulates a condition that the alienation

will in no manner affect the rights of the other party under any

decree which may be passed in the suit unless the property was

alienated with the permission of the court.”

[Sanjay Verma v. Manik Roy, AIR 2007 SC 1332,

para 12]

18. 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 entitled to contest the suit.  

19.           This Court on more than one occasion held that when a

pendente lite purchaser seeks to implead himself as a party -

defendant to the suit, such application should be liberally

considered.  This Court also held in Smt. Saila Bala Dassi v. Smt.

Nirmala Sundari Dassi and Another, AIR 1958 SC 394, that, “justice

requires”, a pendente lite purchaser “should be given an opportunity

to protect his rights”.  It was a case, where the property in dispute

had been mortgaged by one of the respondents to another

respondent.  The mortgagee filed a suit, obtained a decree and

‘commenced proceedings for sale of the mortgaged property’.  The

appellant Saila Bala, who purchased the property from the

judgment-debtor subsequent to the decree sought to implead

herself in the execution proceedings and resist the execution.  That

application was opposed on various counts.  This Court opined that

Saila Bala was entitled (under Section 146 of the C.P.C.) to be

brought on record to defend her interest because, as a purchaser

pendent elite, she would be bound by the decree against her

vendor.  There is some divergence of opinion regarding the

question, whether a 12pendent elite purchaser is entitled, as a

matter of right, to get impleaded in the suit, this Court in (2005) 11

SCC 403, held that :

“Further pending the suit, the transferee is not entitled

as of right to be made a party to the suit, though the court

has a discretion to make him a party. But the transferee

endent elite can be added as a proper party if his interest in

the  subject-matter  of  the  suit  is  substantial  and  not  just

peripheral. A transferee  12endent elite to the extent he has

acquired interest from the defendant is vitally interested in

the litigation, where the transfer is of the entire interest of the

defendant; the latter having no more interest in the property

may not properly defend the suit. He may collude with the

plaintiff. Hence, though the plaintiff is under no obligation to

make a lis pendens transferee a party, under Order 22 Rule

10  an  alienee  12endent elite may  be  joined  as  party.  As

already noticed, the court has discretion in the matter which

must be judicially exercised and an alienee would ordinarily

be joined as a party to enable him to protect his interests. The

court  has  held  that  a  transferee  12endent elite of  an

interest  in  immovable  property  is  a  representative-ininterest of the party from whom he has acquired that

interest. He is entitled to be impleaded in the suit or other

proceedings  where  his predecessor-in-interest  is  made  a

party to the litigation;  he is entitled  to be heard  in  the

matter on the merits of the case.”

[Emphasis supplied]

The preponderance of opinion of this Court is that  a pendente lite

purchaser’s application  for impleadment should normally be

allowed or “considered liberally”.

20. That the question of court fee is a matter between the plaintiff

and the Court is a principle which has been followed for a long time.

The Madras High Court in SL Lakshmana Ayyar vs. TSPLP

Palaniappa Chettiar, AIR 1935 Mad.927 held “  under the prevailing

usage, the court fully goes into the question relating to the Court

fee, only upon an objection taken in the written statement by the

defendant, but as the judicial committee  points out in 36 M.L.1437

the Court fees Act was passed not to arm a litigant with a weapon

of technicality against his opponent, and from that view it follows,

that although in actual practice a defendant is permitted to object

that the proper Court fee has not been paid, he has, strictly

speaking, no legal right to raise such a plea, but his function must

be deemed to be, subject to the court’s leave, merely  to assist in it

coming to a proper decision.”

Though this judgment does not refer to any statutory provisions,

Section 12 of the Court Fees Act, 1870 supports this view.  Sub

section 1 gives finality to the decision of the trial court on the

questions relating to valuation.

“ (1) Every question relating to valuation for the purpose of

determining the amount of any fee chargeable under this

Chapter on a plaint or memorandum of appeal, shall be decided

by the Court in which such plaint or memorandum, as the case

may be, is filed, and such decision shall be final as between the

parties to the suit”.

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.

(2) “But whenever any such suit comes before  a Court of

appeal, reference or revision, if such Court considers  that the

said question has been wrongly decided, to the detriment of the

revenue, it shall require the party by whom such fee has been

paid to pay so much additional fee as would have been payable

had the question been rightly decided, and the provisions of

section 10, paragraph (ii), shall apply.”

In view of the finality attached under sub-section (1) to the decision

of the trial court and the time of the limited scope 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.

21. 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:-

“(2) Any defendant may, by his written statement filed

before the first hearing of the suit or before evidence is recorded

on the merits of the claim but, subject to the next succeeding

sub-section, not later, plead that the subject matter of the

suit has not been properly valued or that the fee paid is

not sufficient.  All questions  arising on such pleas shall be

heard and decided before evidence is recorded affecting such

defendant, on the merits of the claim.  If the Court decides that

the subject-matter of the suit has not been properly valued or

that the fee paid is not sufficient, the Court shall fix a date

before which  the plaint shall be amended in accordance with the

Court’s decision and the deficit fee shall be paid.  If the plaint be

not amended or if the deficit fee be not paid within the time

allowed, the plaint shall be rejected and the Court shall pass

such order as it deems just regarding costs of the suit.”

[Emphasis supplied]

Section 12(4)(a) provides that even the appellate Court can go into

the question of the correctness of the decision of the lower court

(rendered under Section 12(2)) either on its own motion or on the

application of any of the parties. (obviously including the

defendants)

(4)(a)Whenever  a case comes up before a Court of

Appeal, it shall be lawful for the Court, either of its own

motion or on the application of any of the parties, to

consider the correctness of any order passed by the lower

Court affecting the fee payable  on the plaint or in any

other proceeding in the lower Court and determine the

proper fee payable thereon.

Explanation.—A case shall be deemed to come before3 a

Court of appeal even if  the appeal relates only to a part

of the subject matter of the suit.

[Emphasis supplied]

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.

“(b) If the Court of Appeal decides that the fee paid in the

lower Court is not sufficient, the Court shall require the

party liable to pay the deficit fee within such time as may

be fixed by it.”

However,  this Court in Rathnavarma Raja v. Smt. Vimala AIR 1961

SC 1299 held:-

“2. The Court Fees Act was enacted to collect revenue

for the benefit of the State and not to arm a contesting

party with a weapon of defence to obstruct the trial of an

action. By recognising that the defendant was entitled to

contest the valuation of the properties in dispute as if it were a

matter in issue between him and the plaintiff and by entertaining

petitions preferred by the defendant to the High Court in

exercise of its revisional jurisdiction against the order adjudging

court fee payable on the plaint, all progress in the suit for the

trial of the dispute on the merits has been effectively frustrated

for nearly five years. We fail to appreciate what grievance the

defendant can make by seeking to invoke the revisional

jurisdiction of the High Court on the question whether the

plaintiff has paid adequate court fee on his plaint. Whether

proper court fee is paid on a plaint is primarily a question

between the plaintiff and the State. How by an order relating

to the adequacy of the court fee paid by the plaintiff, the

defendant may feel aggrieved, it is difficult to appreciate. Again,

the jurisdiction in revision exercised by the High Court under

Section 115 of the Code of Civil Procedure is strictly conditioned

by clauses (a) to (c) thereof and may be invoked on the ground

of refusal to exercise jurisdiction vested in the Subordinate Court

or assumption of jurisdiction which the court does not possess or

on the ground that the court has acted illegally or with material

irregularity in the exercise of its jurisdiction. The defendant who

may believe and even honestly that proper court fee has not

been paid by the plaintiff has still no right to move the superior

courts by appeal or in revision against the order adjudging

payment of court fee payable on the plaint. But counsel for the

defendant says that by Act 14 of 1955 enacted by the Madras

Legislature which applied to the suit in question, the defendant

has been invested with a right not only to contest in the trial

court the issue whether adequate court fee has been paid by the

plaintiff, but also to move the High Court in revision if an order

contrary to his submission is passed by the court. Reliance in

support of that contention is placed upon sub-section (2) of

Section 12. That sub-section, insofar as it is material, provides:

3. But this section only enables the defendant to raise

a contention as to the proper court fee payable on a plaint

and to assist the court in arriving at a just decision on

that question. Our attention has not been invited to any

provision of the Madras Court Fees Act or any other statute

which enables the defendant to move the High Court in revision

against the decision of the Court of first instance on the matter

of court fee payable in a plaint. The Act, it is true by Section 19,

provides that for the purpose of deciding whether the subjectmatter of the suit or other proceeding has been properly valued

or whether the fee paid is sufficient, the court may hold such

enquiry as it considers proper and issue a commission to any

other person directing him to make such local or other

investigation as may be necessary and report thereon. The

anxiety of the Legislature to collect court fee due from the

litigant is manifest from the detailed provisions made in Chapter

Ill of the Act, but those provisions do not arm the defendant with

a weapon of technicality to obstruct the progress of the suit by

approaching the High Court in revision against an order

determining the court fee payable.”

[Emphasis supplied]

In our opinion the above conclusion is clearly supportable from the

language of sub-section (4)( c).

(c ) If the deficit fee is not paid within the time fixed and the

default is in respect of a relief which has been dismissed by the

lower Court and which the appellant seeks in appeal, the appeal

shall be dismissed, but if the default is in respect of a relief

which has been decreed by the lower Court, the deficit fee shall

be recoverable as if it were an arrear of land revenue.”

It can be seen, the sub-section (c) provides for the dismissal 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

court.  However in the case of the default in making good portion of

the court fee pertaining 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 payment of the

inadequate Court fee by the plaintiffs.

22. 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 2

nd

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.

23. The next question that is required to be examined is that if

appropriate court fee is not paid at the time of the filing of the

plaint, can the suit be said to be a valid suit in the eye of law.  A

further question arising out of the above is –  what is the effect of

the payment of appropriate court fee subsequent to the expiry of

the period of limitation prescribed by law for the filing of a suit in a

case where the plaint is filed within the period of limitation

applicable to such case. Ancillary to the above question is the

question whether, in such a case, the defendant is entitled to notice

before the Court accepts the payment of the deficit Court fee.  

24. 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 The Court Fees Act 1870 and The Suits

Valuation Act 1887 (which governed the field of the valuation of

suits and payment of court fees) are repealed.    It may not be

either necessary or profitable to go into the scheme of the repealed

enactments except to take note of the historical fact for certain

limited purpose.

25. 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.

“4. Levy of fee in Courts and public offices

No document which is chargeable with fee under this Act shall --

(i) be filed, exhibited or recorded in, or be acted on or furnished

by, any Court including the High Court, or

(ii) be filed, exhibited or recorded in any public office, or be

acted on or furnished by any public officer,

unless in respect of such document there be paid a fee of an

amount not less than that indicated as chargeable under this Act:

Provided that, whenever the filing or exhibition in a Criminal

Court of a document in respect of which the proper fee has not

been paid is in the opinion of the Court necessary to prevent a

failure  of  justice,  nothing  contained  in  this  section  shall  be

deemed to prohibit such filing or exhibition.”

26. Section 5 stipulates when a document on which court fee is

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 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 5 takes within its sweep a plaint contemplated under

the Code of Civil Procedure (hereinafter ‘the Code’  for short).  It

may be pertinent to mention that 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 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.

27. 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 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

28.  Stamping documents inadvertently received – No document which ought to bear a stamp

under this Act shall be of any validity unless and until it is properly stamped.

         But, if any such document is through mistake or inadvertence received, filed or used in

any Court or office without being properly stamped, the Presiding Judge or the head of the office, as

the case may be, or, in the case of a High Corut, any Judge of such Court, may, if he thinks fit, order

that such document be stamped as he may direct; and, on such document being stamped accordingly,

the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in

the first instance.

shall not of its own force preclude the plaintiff from presenting a

fresh plaint in respect of the same cause of action.  However,

Section 149 of the Code stipulates as follows:

“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 courtfees 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.”

It can be seen from the language of Section 149, it 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 the appropriate law.  It may be further mentioned

that Order VIII of the Code provides for set-off and counter claims

under Rule 6 and 6A.  Under 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 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.

28. Therefore, from the language of Section 149 CPC it follows

that when a plaint is 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.  It, therefore, appears to us

that any 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.

29. This Court in AIR 1971 SC 1374-  Mannan Lal  v. Mst.

Chhotka Bibi (dead) by Lrs. & Ors.  interpreting Sec. 149 CPC held:-

“The above section therefore mitigates the rigour of Section 4

of the Court Fees Act and it is for the Court in its discretion to allow a

person who has filed a memorandum of appeal with deficient court-fee

to make good the deficiency and the making good of  such deficiency

cures the defect in the memorandum not from the time when it is made

but from the time when it was first presented in Court.

In  our  view  in  considering  the  question  as  to  the

maintainability of an appeal when the Court fee paid was insufficient

to start with but the deficiency is made good later on the provisions of

the Court Fees Act and the Code of Civil Procedure have to be read

together to form a harmonious  whole and no effect should be made to

give precedence to provisions in one over  those of the other unless the

express words of a statute clearly override those of the other.

It was further held at para 14:-

“There can  in our opinion be no doubt that Sec.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.  If the deficiency is

made good no possible objection can be raised on the ground of the

bar of limitation: the memorandum of appeal must be  treated  as

one filed within the period fixed by the Limitation Act subject to

any express provision to the contrary in that Act and the appeal must

be treated as pending from the date when the memorandum of appeal

was presented in court.  In our view it must be treated as pending from

the date of presentation not only for the purpose of limitation but also

for the purpose of sufficiency as to court-fee under Section 149 of the

Code.”

[Emphasis supplied]

30. It was a case where by an Act of the U.P. Legislature the

appellate jurisdiction provided under the Letters Patent  of Her

Majesty dated 17

th

March, 1866 was abolished.  However, Sec.3 of

the U.P. Act saved the pending Letters Patent appeals.  The

question before this Court was whether Letters Patent appeal

presented to the Allahabad High Court prior to the commencement

of the Abolition Act but without affixing appropriate court fees

stamp can be said to be a pending appeal.  This Court on a

consideration of  the relevant provisions of the law and also the

decisions of the Madras High Court in Gavaranga Sahu Vs.

Batakrishna Patro, (1909) ILR 32  Mad 305 (FB) and Faizullah Vs.

Mauladad, AIR 1929 PC 147 reached the conclusion that  such an

appeal was a ‘pending appeal’ for the purpose of the  Abolition Act.

31. We may mention here that the subject matter of dispute in

the above mentioned case was a Letters Patent Appeal. However,

the Full Bench decision of the Madras High Court, quoted with

approval by this Court (supra), dealt with  the question whether the

payment of deficit in court fee beyond the period of limitation

prescribed for filing the suit  would retrospectively render the plaint

(originally presented within the  period of limitation but with deficit

court fee) a validly presented plaint:

“The argument advanced in that case before the Court appears to

have been to the effect that a plaint which was not sufficiently

stamped within the period of limitation was not a valid plaint at

all.  In the order of reference the law on the subject was set forth

in some detail and the learned referring Judge opined that an

insufficiently stamped plaint did not become a new plaint when

the  deficiency  was  supplied.  The  learned  Judges  of  the  Full

Bench fully agreed with the view taken in the order of reference

and with the reasons upon which it was based and merely added

that Section 149 of the Civil Procedure Code  of 1908 was in

accordance with this view.”

In substance, the Full Bench Madras High Court held that such a

plaint would be a validly presented plaint.  This Court approved the

said decision.  

32. 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 occur an error (either advertently or

otherwise), on either of the abovementioned counts.  Under Section

12(1) of the Tamil Nadu Act (which is relevant for our purpose),

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.  As already noticed, under Section 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 contingencies mentioned above, 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.

33. If such conclusion is reached by the trial Court, the trial

Court is mandated to reject the 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 of hearing of the appeal, are

stipulated under Section 12(4)(c), which is already taken note of

earlier.

12 Decision as to proper fee in other Courts

    (2) Any defendant may, by his written statement filed before the first hearing of the suit or before

evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that

the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising

on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the

claim. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not

sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision

and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed,

the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.

34. That leads us to the next question regarding the legal

character of Section 149. Is it a provision conferring authority on

the Court to call upon a plaintiff to make payment of court fee which

was found to be due but short paid on the plaint or is it a provision

conferring a right on the plaintiff to make good the deficit court fee

at any point of time irrespective of the provisions of the law of

limitation and other provisions and principles of law.

35. We have already noticed that 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, under Rule

13, such a rejection by itself does not preclude the plaintiff from

presenting a fresh 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

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, as interpreted by this Court in Mannan Lal (supra),

confers 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 mitigated to some extent by the Parliament

when it enacted Section 149 CPC.  We may not forget that

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.

36. This court on more than one occasion held that the

jurisdiction under Section 149 CPC is discretionary in nature. [See

P.K. Palanisamy Vs. N. Arumugham & Anr., (2009) 9 SCC 173 and

(2012) 13 SCC 539]

37. It is well settled that the judicial discretion is 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

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 exercise of such discretion would certainly have some

bearing on the rights and obligations of the defendants or persons

claiming through the defendants. (The case on hand is a classic

example of such a situation.)  It necessarily follows from the above

that Section 149 CPC does not confer 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.

38. On the facts of the case on hand, the High Court recorded its

conclusion as follows:

“………. the Subordinate Judge has erred in allowing the I.A.

Nos.75 and 76 of 2004 by exercising the discretion without

analysing  the  bona  fides  of  the  plaintiffs  case  and  without

giving notice to the defendant.”

Such a conclusion was recorded on the basis of the finding:

“Apart from that sufficient cause was not shown in the two

affidavits filed in support of the application to condone the

delay of representation in I.A. No.76/2004 the reason given

was that due to non availability of stamp paper, proper court

fee could not be paid. In I.A. No.75/2004 no reason has been

stated for such deficit court fee. Even for the delay also the

conventional  reason  of  jaundice  has  been  stated  and  the

plaintiffs alleged that they have been taking Siddha treatment

for such ailment.  Even such affidavits have been filed only by

the  counsels  and  not  by  the  parties.   But  accepting  such

reasons, the delay in representation as well as the payment of

deficit court fee has been accepted by the court below.”

[Emphasis supplied]

39. We do not see any reason to take a different view than that

are taken by the High Court.  The discretion under Section 149 was

not exercised by the trial Court in accordance with the principles of

law.  The appeal is, therefore, required to be dismissed on that

count alone.  In view of such a conclusion, we do not think it

necessary to examine the other questions raised by the 2

nd

defendant.

40. The appeal is dismissed.

………………………………….J.

( P. SATHASIVAM )

………………………………….J.

( J. CHELAMESWAR )

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