Mrs Priya Bhandary vs Mrs Rama Bhandary
2022 Latest Caselaw 3112 Kant

                                       W.P. NO.16773 OF 2017
                                   1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                           BEFORE

         THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

       WRIT PETITION NO.16773 OF 2017 (GM-CPC)

BETWEEN:

MRS. PRIYA BHANDARY
W/O LATE DR. K.T. BHANDARY
AGED ABOUT 54 YEARS
R/AT KURNADKA HOUSE
KEMMINJE TEMPLE ROAD
PUTTUR TALUK
DAKSHINA KANNADA DISTRICT.
                                              ...PETITIONER
(BY SRI. S. RAJASHEKAR, ADVOCATE-PH)

AND:
1. MRS. RAMA BHANDARY
   W/O LATE DR. K.T. BHANDARY
   DEATH

2.    GURU SANDESH BHANDARY
      S/O LATE DR. K.T. BHANDARY
      AGED 44 YEARS
      R/AT MAINDANADKA HOUSE
      NEAR VISHNUMURTHY TEMPLE
      BADAGANOOR POST
      PUTTUR TALUK-574201

3.    GURU VACHAN BHANDARY
      S/O LATE DR. K.T. BHANDARY
      AGED 42 YEARS
      R/AT MAINDANADKA HOUSE
      NEAR VISHNUMURTHY TEMPLE
      BADAGANOOR POST
      PUTTUR TALUK-574201
                                               W.P. NO.16773 OF 2017
                                     2



4.   CANARA BANK
     PUTTUR BRANCH
     MAIN ROAD PUTTUR-574201
     REPRESENTED BY ITS SENIOR MANAGER
                                             ... RESPONDENTS
(BY SRI. HEMANTH R. RAO, ADVOCATE FOR
    SRI. H.S. RUKKOJI RAO, ADVOCATE FOR R4;
    V/O DATED 7.6.2018 R2 AND R3 ARE LR'S OF R1;
    R2 & R3-SERVED)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 28.3.2016 PASSED IN O.S.NO. UNNUMBERED /2013 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND CJM, MANGALORE
VIDE ANNEXURE-A AND RESTORE THE SUIT AND ETC.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

1. The petitioner is before this Court seeking for the

following reliefs:

a. Set aside the order dated 28.3.2016 passed in O.S.No. unnumbered /2013 on the file of The Senior Civil Judge and CJM, Mangalore vide Annexure-A and restore the suit.

b. Grant such other and further relief as this Hon'ble Court deems fit and proper under the circumstances of this case in the interest of justice and equity.

2. O.S.No. (unnumbered)/2013 was presented before the

Senior Civil Judge, Mangalore on 26.06.2013 in

furtherance of the order passed on 7.06.2013 in O.S.

No.422/2008 by III Addl. Civil Judge, Mangalore, D.K.

W.P. NO.16773 OF 2017

The suit in O.S.No.422/2008, the following relief has

been sought for:

"i. For a declaration that the plaintiff is the sole legatee of the Will dt. 29.11.2001 executed by Dr.K.T.Bhandary and the said will is the only last Will and testament of Dr.K.T.Bhandary, S/o late Ithappa Bhandary, resident of Koornadka, Kemminje Post, Darbe, Puttur, Mangalore and for a consequential relief of permanent prohibitory injunction restraining the 4th defendant or any one claiming through or under them frim dispossessing the plaintiff from the house bearing door no.3-129 situated in the plaint B schedule property.

ii. for grant of cost of this suit.

iii For grant of such other and further reliefs."

3. Court fee paid was a sum of Rs.95/- by valuing the

same at Rs.1,000/- for the purpose of jurisdiction and

fixed court fee of Rs.25/- was paid under Section 24(d)

of the Karnataka Court Fees and Suits Valuation Act,

1958 ('KFSV Act' for short) on the relief of prohibitory

injunction which had been sought for.

4. In the said suit, the defendant on service and

appearance took up the contention that the suit is not

properly valued for the purpose of jurisdiction, hence

the same was taken up for consideration and the trial W.P. NO.16773 OF 2017

Court being of the opinion that it does not have a

pecuniary jurisdiction to try the matter, directed the

return of the plaint under Order 7 Rule 10 of CPC to

enable the plaintiff to present the same before the

jurisdictional Court in accordance with law.

5. The said order having been passed on 7.06.2013, the

plaint was presented before the Senior Civil Judge,

Mangalore on 26.06.2013; however, the requisite court

fee was not paid on the same.

6. An objection having been raised by the office of the

Senior Civil Judge, Mangalore, as regards payment of

deficit court fee, time was granted till 5.09.2013 for

making payment of court fee. However, no such

payment was made. It was only on 17.03.2016 that an

application under Section 151 of CPC was filed seeking

for putting up of the file before the Court for necessary

orders, the said application was considered and the said

Court on 28.03.2016, taking note of the fact that

plaintiff has not taken any steps to comply with office

objections dismissed the suit as barred by limitation W.P. NO.16773 OF 2017

since it has not taken on record as on that date. It is

aggrieved by the said order, the petitioner is before this

Court.

7. Sri. Rajashekar S, learned counsel for the petitioner

would submit that:

7.1. The petitioner has presented the said suit before

the Senior Civil Judge, Mangalore on 26.06.2013

i.e within a period of one month from the date on

which order under Order 7 Rule 10 of CPC was

passed on 7.06.2013, the trial Court ought to

have instead of dismissing the suit called upon the

plaintiff to make good the deficit court fee without

calling upon the plaintiff to do the needful, the

trial Court could not have dismissed the Suit;

7.2. That both the trial Court and this Court could

exercise powers under Section 149 of CPC to

extend the time for payment of court fee in the

interest of justice.

W.P. NO.16773 OF 2017

7.3. In this regards he relies upon the decision of the

Hon'ble Apex Court in the case of Mahanth Ram

Das -v- Ganga Das [AIR 1961 SC 882], , more

particularly para 5 thereof, which is reproduced

hereunder for easy reference:

"5. The case is an unfortunate and unusual one. The application for extension of time was made before the time fixed by the High Court for payment of deficit court fee had actually run out. That application appears not to have been considered at all, in view of the peremptory order which had been passed earlier by the Division Bench hearing the appeal, mainly because on the date of the hearing of the petition for extension of time, the period had expired: The short question is whether the High Court, in the circumstances of the case, was powerless to enlarge the time, even though it had peremptorily fixed the period for payment. If the Court had considered the application and rejected it on merits, other considerations might have arisen; but the High Court in the order quoted, went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and s. 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on July 13, 1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from July 8, 1954. How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had W.P. NO.16773 OF 2017

started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding even though a final order had been passed. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari (1). No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council. But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under s. 151 of the Code of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions ss. 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come."

7.4.   He     relies      on     the      decision       in    the      case        of

       P.K.Palanisamy                  -v-       N.Arumugham                   and

Another [(2009)9 SCC 173], more particularly

para 17 and 18 thereof, which are reproduced

hereunder for easy reference:

"17. Payment of court fees furthermore is a matter between the State and the suitor. Indisputably, in the event a plaint is rejected, the defendant would be benefited thereby, but if an objection is to be raised in that behalf or an application is to be entertained by the Court at the behest of a defendant for rejection of the plaint in terms of Order VII rule 11(c) of the Code, several aspects of the matter are required to be considered. Once an application under Section 149 is allowed, Order VII Rule 11(c) of Code will have no application. It is for that additional reason, the orders extending the time to deposit deficit court fee should have been challenged.

W.P. NO.16773 OF 2017

18. Filing of an application for rejection of plaint in a case of this nature as also having regard to the events which have taken place subsequent to registration of the suit appears to us to be mala fide. If the learned trial judge did not entertain the said plea, the High Court should not have interfered therewith.

7.5. He also relies upon the decision of the Hon'ble

Madras High Court in the case of Mahalingam

and Another -v- K.Krishnasamy Naidu

[2009(6) CTC 92] more particularly para 17 and

18 thereof, which are reproduced hereunder for

easy reference:

" 12. A further reading of Section 149 of the Code of Civil Procedure also clearly indicates that once a Court exercises it discretion in favour of a party under Section 149 of C.P.C., then the same shall have the same force and effect as if such fee had been paid in the first instance. In other words, once an order is passed under Section 149, and the same is complied with by a party concerned, then the order will have the retrospective effect starting from the date of the presentation of the plaint. Therefore, a reading of the above said Section would clearly show that the power exercised under Section 149 of C.P.C., is procedural in nature and the discretion is rather wide for the Court while allowing the application. A further reading of the said Section would show that the said power under Section 149 of C.P.C., is an inherent power given to the Court in directing a party to make the deficit court-fee. Duty is cast upon the Court to consider, if the document presented to the Court is affixed with proper court-fee. Hence, a reading of the above said Section shows that the concerned Court can and shall direct the party to make the payment of deficit court-fee even without an application seeking permission of the Court to make the said payment.

31.The Following principles are emerged on a consideration of the various judgments referred to above:-

W.P. NO.16773 OF 2017

1.The power exercised by a Court under Section 149 is very wide and the discretion shall be exercised in favour of the plaintiff in the normal circumstances.

2.The power under Section 149 of C.P.C. can be exercised by the Court concerned 'at any stage' of the suit.

3. When the Court exercises the power under Section 149 of C.P.C. before numbering the plaint, the Court is not required to issue notice to the proposed defendant in the suit, since it is a matter between the Court and the plaintiff.

4.Once, the Court exercise the power under Section 149 of C.P.C., the same relates back with the presentation of the plaintiff at the first instance and therefore, the question of limitation does not arise.

5.When the power is exercised by the Court on an application filed under Section 151 of the Code of Civil Procedure, it is deemed to have been in exercise under Section 149 of the Code of Civil Procedure.

6.The Court can exercise its power under Section 149 of C.P.C. either with or without an application by the party concerned.

7.An order passed or deemed to have been passed under Section 149 of the Code of Civil Procedure, cannot be challenged and decided in a revision or at the time of final hearing in the normal circumstances, until and unless mala fide is raised and proved.

8.The onus of proving lack of bonofides or mala fides is heavily on the person who alleges the same.

9.The power exercised by the Court can also be challenged on the ground that the Court below has not followed the proviso to Order VII, Rule 11, of C.P.C.

10.The power under Order VII, Rule 11 of C.P.C. cannot be invoked when the plaintiff pays the amount as per the order of the Court as directed under Order VII, Rule 11 (b) and (c) of C.P.C.

W.P. NO.16773 OF 2017

7.6. Relying upon the above decisions, he reiterates

that the trial Court had necessary powers under

Section 149 to extend the time for payment of the

court fee and in this regard notice ought to have

been ordered on the plaintiff calling upon the

plaintiff to make payment of the court fee and

only then pass necessary orders.

7.7. He further submits that non-payment of court fee

is a curable defect. If the trial court had provided

an opportunity to the plaintiff, he would have

made payment of the deficit court fee, on which

basis the defect could have been cured before the

trial Court.

8. Sri.Hemanth Rao, learned counsel for the respondents

would however submit that:

8.1. There are no bonafides on part of the petitioner

inasmuch as the time fixed by the trial Court

being 5.09.013, no payment of court fee has been

made within the said time. There was no attempt W.P. NO.16773 OF 2017

made by the plaintiff to even approach the trial

Court seeking for extension of time to make

payment of court fee. It is only on 17.03.2016

that an application under Section 151 of CPC was

filed seeking for putting up of the file before the

Court for necessary orders;

8.2. The said application cannot be considered to be

one under Section 149 of CPC. Thus, no discretion

is required to be exercised in favour of the

petitioner and as such, the order passed by the

trial Court is proper and correct.

9. Heard Sri. Rajashekar S, learned counsel for the

petitioner, Sri.Hemanth Rao, learned counsel for the

respondents, perused papers.

10. As observed by the Apex Court in Mahanth Ram Das

case, the present case is also an unfortunate and

unusual one. In that the suit in O.S.No.422/2008 which

was originally filed before the Civil Judge (Jr.Dn),

Mangalore, D.K, had been returned to be presented

before the Court of competent jurisdiction and it is in W.P. NO.16773 OF 2017

furtherance of the same that plaint was presented

before the Senior Civil Judge, Mangalore, D.K. on

26.06.2013.

11. Though the contention of Sri.Rajashekar is that the time

for payment of court fee could have been extended, a

perusal of the papers on record indicate that the suit

which was originally filed before the Civil Judge (Jr.dn),

Mangalore, D.K., being one for declaration and

permanent injunction, even when the suit was filed, the

valuation was made only on the relief of permanent

prohibitory injunction and a sum of Rs.25/- was paid as

Court fee, however no court fee was paid as regards

declaratory relief. The Civil Judge (Jr.dn) after hearing

the parties had categorically come to a conclusion by

valuing the subject matter of the suit that the subject

matter of the suit would have to be valued at

Rs.18,46,000/- and court fee had to be paid thereon.

12. This order was to the knowledge of the plaintiff. The

plaintiff though re-presented the suit on 26.06.2013 did

not choose to file a valuation memo nor make payment W.P. NO.16773 OF 2017

of the necessary court fee on the said suit. The Court of

Senior Civil Judge had also fixed 5.09.2013 to be the

date of compliance which was also not done.

13. It was only on 17.03.2016 that an application came to

be filed under Section 151 of CPC, even in the said

application, no relief was claimed for extension of time

for making payment of the court fee even though court

fee had been determined by the Civil Judge (Jr.dn)

Court in O.S. No.422/2008 way back in its order dt.

7.02.2016.

14. In my considered opinion, a mere presentation of the

plaint before the Court of Senior Civil Judge, Mangalore

would not amount to registration of the case. It is for

this reason that there is no number which came to be

allotted to the said case. Thus as on the date of the

impugned order being passed 23.08.2016 there is no

suit which was in existence to bring into operation the

ratio laid down by the Hon'ble Madras High Court in

Mahalingam's case, that apart in the said decision, an

application under Section 149 of CPC had been filed. In W.P. NO.16773 OF 2017

the present case, no such application has been filed.

Hence, the said decision would also be not applicable.

15. The decision in P.K.Palanisamy's case would also be

inapplicable. In the present situation, despite time

having been granted by the Court, the Court fee had not

been paid. Thus reference made to para 17 of the

above case would be of no avail in the present

circumstances.

16. In the above background, I am of the considered

opinion that mere presentation of the plaint would not

amount to filing of registration of the suit. The

concomitant factors including the payment of court fee

is essential for the suit to be registered whether the

court fee paid is proper or not could have been

determined later. If on determination, it is found that

the court fee paid is less, the plaintiff could have sought

time to make good the deficit by filing an application

under Section 149 of CPC.

17. In the present case, the trial Court having fixed the time

for payment of court fee to be 5.09.2014, the same W.P. NO.16773 OF 2017

having not been paid, cause of action as stated in

O.S.No.422/2008 having arisen way back on

30.10.2003 and the court fee not having been paid till

28.03.2016, I am of the considered opinion that Non-

payment of court fee due to which the suit itself was not

registered made the suit exfacie barred by limitation

which has been taken into consideration in the

impugned order passed.

18. In the aforesaid circumstances, I do not find any

infirmity in the order passed by the trial Court.

19. The Writ Petition stands accordingly dismissed.

Sd/-

JUDGE

ln