# A. NAWAB JOHN & ORS v. V.N. SUBRAMANIYAM

- **Citation:** [2012] 6 S.C.R. 369
- **Court:** Supreme Court of India
- **Decided:** 2012-07-03
- **Case number:** Civil Appeal Nos. 4838-4840 of 2012
- **Bench:** P. Sathasivam, J. Chelameswar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-nawab-john-ors-v-v-n-subramaniyam-28189
- **Pages:** 35

## Headnote

Court Fees Act, 1870: Filing of plaint - Deficient court
fee - Right of defendant to raise objection - Held: Question
A
B
of court fee is a matter between the plaintiff and the Court - If C
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 - 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 - In a
D
case where the plaint is filed within the period of limitation
prescribed by law but with deficit courtfee and the plaintiff
seeks to make good the deficit of the court fee beyond the
period of limitation, the Court, though has discretion uls. 149
CPC, must scrutinise the explanation offered for the delayed
E
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 - It necessarily follows that s. 149
CPC does not confer an absolute right in favour of a plaintiff
F
to pay the court fee as and when he pleases - It only enables
a plaintiff to seek. the indulgence of the' Court to permit the
payment of court fee at a point oftime later than the
presentation of the plaint - The exercise of the discretion by
the Court is conditional upon the satisfaction of the Court that
G
the plaintiff offered a legally acceptable explanation for not
paying the court fee within the period af limitation - Code of
Civil Procedure, 1908 - s.149.
Code of Civil Procedure, 1908: s. 149; 0. 7, r. 11 -
369
H
370
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A Rejection of plaint sought on ground of deficiency of court fees
- Held: 0. 7 r. 11 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
B requisite court fee by supplying the stamp paper within the
time fixed by the court - However, s. 149 speaks about the
power to make up deficiency of court-fees - When s. 149
speaks about a document with respect to which court fee is
required to be paid, it takes within its sweep not only plaints
c 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 - Therefore, from the language of
s.149 it follows that when a plaint is presented to a Court without
the payment of appropriate court fee payable thereon,
0 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 - Therefore, 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
E cannot be said to be barred from paying the deficit court fee
because of the lapse of time - s. 149 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 -
F Limitation is only a prescription of law; and Legislature can
always carve out exceptions to the general rules of limitation,
such as s.5 of the Limitation Act which enables the Court to
condone the delay in preferring the appeals etc. - Limitation
G
H
Act - Court Fees Act, 1870.
Transfer of Property Act, 1882:
s. 52 -
Pendente lite purchaser's application for
impleadment -
Held: Should normally be allowed or
considered liberally.
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM
371
s.52 - Effect of- Held: Effect of s.52 is not to render
A
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 sui

## Text

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[2012] 6 S.C.R. 369
A. NAWAB JOHN & ORS.
V.
V.N. SUBRAMANIYAM
(Civil Appeal Nos. 4838-4840 of 2012)
JULY 3, 2012
[P. SATHASIVAM AND J. CHELAMESWAR, JJ.)
Court Fees Act, 1870: Filing of plaint - Deficient court
fee - Right of defendant to raise objection - Held: Question
A
B
of court fee is a matter between the plaintiff and the Court - If C
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 - 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 - In a
D
case where the plaint is filed within the period of limitation
prescribed by law but with deficit courtfee and the plaintiff
seeks to make good the deficit of the court fee beyond the
period of limitation, the Court, though has discretion uls. 149
CPC, must scrutinise the explanation offered for the delayed
E
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 - It necessarily follows that s. 149
CPC does not confer an absolute right in favour of a plaintiff
F
to pay the court fee as and when he pleases - It only enables
a plaintiff to seek. the indulgence of the' Court to permit the
payment of court fee at a point oftime later than the
presentation of the plaint - The exercise of the discretion by
the Court is conditional upon the satisfaction of the Court that
G
the plaintiff offered a legally acceptable explanation for not
paying the court fee within the period af limitation - Code of
Civil Procedure, 1908 - s.149.
Code of Civil Procedure, 1908: s. 149; 0. 7, r. 11 -
369
H
370
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A Rejection of plaint sought on ground of deficiency of court fees
- Held: 0. 7 r. 11 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
B requisite court fee by supplying the stamp paper within the
time fixed by the court - However, s. 149 speaks about the
power to make up deficiency of court-fees - When s. 149
speaks about a document with respect to which court fee is
required to be paid, it takes within its sweep not only plaints
c 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 - Therefore, from the language of
s.149 it follows that when a plaint is presented to a Court without
the payment of appropriate court fee payable thereon,
0 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 - Therefore, 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
E cannot be said to be barred from paying the deficit court fee
because of the lapse of time - s. 149 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 -
F Limitation is only a prescription of law; and Legislature can
always carve out exceptions to the general rules of limitation,
such as s.5 of the Limitation Act which enables the Court to
condone the delay in preferring the appeals etc. - Limitation
G
H
Act - Court Fees Act, 1870.
Transfer of Property Act, 1882:
s. 52 -
Pendente lite purchaser's application for
impleadment -
Held: Should normally be allowed or
considered liberally.
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM
371
s.52 - Effect of- Held: Effect of s.52 is not to render
A
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.
Tamil Nadu Court Fees and Suits Valuation Act, 1955:
B
ss. 4, 5, 12 - Held: No document which is chargeable with a
fee under the Act shall be acted on by any court or any public
office unless the appropriate fee payable under the Act in
respect of such a document is paid - When a document on
which court fee is payable is received in any court or public
C
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 - Upon such payment, such
D
document "shall have the same force and effect'' as if the court
fee had been paid in the first instance - Indisputably, the
expression "document" takes within its sweep a· plaint
contemplated under the Code of Civil Procedure - Court
Fees Act, 1870.
E
Judicial discretion: Exercise of - Scope - Held: 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 suit for specific performance of agreement of
sale, the suit was valued at Rs.13 lacs on which the
plaintiff calculated court fee at Rs.99,875 under Section
F
42 of the Tamil Nadu Court Fees and Suits Valuation Act,
G
1955. However, the plaint was presented on 20.08.1998
with court-fee of only Rs.2,000/-. The plaint was returned
by the Court on 24.08.1998 with various objections
including the deficiency in the court-fee. The plaintiffs
represented (1st representation) the plaint after a long
H
372
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A delay on 3.5.2002 along with a court-fee of Rs.96,000/-,
with an application to condone the delay in
representation. On 3.6.2002, the plaint was again returned
on the ground deficit of the court-fee. The plaint was
represented on 22.1.2004 (second representation)
B remitting a further amount of Rs.2,875/- court-fee along
with applications to condone the delay in representation.
On the same day, the plaint was once again returned with
certain objections. On 9.4.2004, the plaint was once again
represented (3rd representation) with an application to
C condone the delay of 70 days in representation.
On 15.4.2004, the suit was taken on record by the
Court. On 5.10.2004, the original defendant was set ex
parte. On the same day, an application was filed by the
sole respondent for impleadment as a party defendant to
D the said suit on the ground that he had purchased the
suit property on 8.3.1999. The trial court allowed the
impleadment application and the sole respondent
became second defendant in the suit.
E
The respondent filed revision petition before the High
Court challenging the decision of the trial court to
condone the delay of 1328 days in the first of the three
representations of the plaint. Another revision petition
was filed challenging the order by which, the trial court
F condoned the delay of 585 days in the second of the
representation. During the pendency of the two revision
petitions, second defendant (sole respondent) filed his
written statement and also filed application invoking
Order 7 Rule 11, CPC for rejection of the plaint. The
application filed under Order 7 Rule 11 CPC by the
G second defendant/respondent was dismissed and a
revision was filed challenging the same. The said revision
petition and revision petition challenging the delay in
filing first two representations were heard together and
allowed by the High Court by a common order. The
H
'
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM
373
instant appeals were filed challenging the order of the A
High Court.
Dismissing the appeals, the Court
HELD: 1. Section 52 of the Transfer of Property Act
incorporates doctrine of /is pendens and it stipulates that 8
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 any C
other party to such a suit or proceeding. 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 D
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. E
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 entitleJ to contest the
suit. This Court on more than one occasion held that F
when a pendente lite purchaser seeks to implead himself
as a party - defendant to the suit, such application should
be liberally considered. [Paras 16-19] [386-A-B; 387-8-CF-G]
Jayaram Muda/iar v. Ayyaswami and Others, (1972) 2 G
SCC 200: 1973 (1) SCR 139; Vinod Seth v. Devinder Bajaj
(2010)8 SCC 1; Sanjay Verma v. Manik Roy, AIR 2007 SC
1332: 2006 (10) Suppl. SCR 469 - relied on.
Be/kamy v. Subina (1857) De. GEJ 566 - referred to.
H
374
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
2. The question of court fee is a matter between the
plaintiff and the Court. Sub-section 1 of Section 12 of the
Court Fees Act, 1870 gives finality to the decision of the
trial court on the questions relating to valuation. Subsection 2 however provides that the appellate or
B 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. In
view of the finality attached under sub-section (1) to the
decision of the trial court and the time of the limited scope
c 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. However
0
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.
Section 12(4)(a) provides that even the appellate Court
can go into the question of the correctness of the
E decision of the lower court (rendered under Section 12(2))
either on its own· motion or on the application of any of
the parties. 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. The
sub-section (c) of Section 12(4) provides for the dismissal
F
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 co,urt. However in the case of the
default in making good portion of the court fee pertaining
G 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
H payment of the inadequate Court fee by the plaintiffs.
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 375
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 second 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. [paras 20-22) (389-C-F-H; 390-A, C-D; 391-BF; 394-A-D)
Rathnavarma Raja v. Smt. Vimala AIR 1961 SC 1299:
1961 SCR 1015 - relied on.
SL Lakshmana Ayyar vs. TSPLP Palaniappa Chettiar
AIR 1935 Mad.927 - referred to.
3. 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 Court Fees Act 1870 and Suits Valuation Act
1887 (which governed the field of the valuation of suits
and payment of court fees) were repealed. 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
A
B
c
D
E
F
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. Section 5
stipulates when a document on which court fee is
G
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
H
376
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A 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
B 5 takes within its sweep a plaint contemplated under the
Code of Civil Procedure. 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
c 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
0 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. [Paras 24- 26] [394E H; 395-A-C-G-H; 396-A-E]
4. 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
F 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 shall not of its own force preclude the plaintiff from
presenting a fresh plaint in respect of the same cause of
G action. However, Section 149 of the Code talks about the
power to make up deficiency of court-fees. Section 149
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
H the appropriate law. Order VIII of the Code provides for
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM
377
set-off and counter claims under Rule 6 and SA. Under A
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
B
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.Therefore, from the language
of Section 149 CPC it follows that when a plaint is c
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. Therefore, any 0
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. [Paras 27- 28] [396-E-F; 397-A-B-D-H; 398E
A]
5. 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
F
occur an error (either advertently or otherwise), on either
of the counts. Under Section 12(1) of the Tamil Nadu Act,
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. Under Section G
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
H
378
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
contingencies 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. If such conclusion is reached
by the trial Court, the trial Court is mandated to reject the
s
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
c of hearing of the appeal, are stipulated under Section
12(4)(c). [Paras 32-33) [400-D-F; 401-A-C)
6. 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,
D under Rule 13, such a rejection by itself does not
preclude the plaintiff from presenting a fresfl 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
E 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 confers
F
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
G mitigated to some extent by the Parliament 'when it
enacted Section 149 CPC. 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. [Para
H 35]J401-F-H; 402-A-C]
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM
379
7. It !s well settled that the judicial discretion is
A
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
B
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 c
exercise of such discretion would certainly have some
bearing on the rights and obligations of the defendants
or person~ claiming through the defendants. (The case
on hand is a classic example of such a situation.) It
necessarily follows that Section 149 CPC does not confer 0
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. The discretion under Section 149 was not
exercised by the trial Court in accordance with the
principles of law. [Paras 37, 39] [402-D-H; 403-A, F]
Mannan Lal v. Mst. Chhotka Bibi (dead) by Lrs. & Ors.
AIR 1971 SC 1374: 1971 (1) SCR 253; P.K. Palanisamy v.
N. Arumugham & Anr., (2009) 9 SCC 173: 2009 (11) SCR
342 - relied on.
K. Natarajan v. P.K. Rajasekaran, (2003) 2 M.L.J. 305;
Smt. Sai/a Bala Dassi v. Smt. Nirmala Sundari Dassi and
Another 1958 SCR 1287: AIR 1958 SC 394; Gavaranga
Sahu Vs. Batakrishna Patro, (1909) ILR 32 Mad 305 (FB);
E
F
G
H
380
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A Faizullah Vs. Mau/adad, Al.R 1929 PC 147 - referred to.
Case Law Reference:
(2003) 2 M.L.J. 305
referred to
Para 12(3)
B
1973 (1) SCR 139
relied on
Para 16
(1857) De. GEJ 566
referred to
Para 16
c201 o) a sec 1
relied on
Para16
c
2006 (10) Suppl. SCR 469
relied on
Para 17
1958 SCR 1287
referred to
Para 19
AIR 1935 Mad.927
referred to
Para 20
1961 SCR 1015
relied on
Para 21
D
1971 (1) SCR 253
referred to
Para 29
(1909) ILR32 Mad 305 (FB)referred to
Para 30
AIR 1929 PC 147
referred to
Para 30
E
2009 (11) SCR 342
relied on
Para 36
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4838-4840 of 2012.
From the Judgment & Order dated 22.12.2006 of the High
F Court of Judicature at Madras in CRP (PD) Nos. 657, 658 and
797 of 2006.
G
S. Gurukrishna Kumar, A. Prasanna Venkat, Srikala
Gurukrishna Kumar for the Appellants.
R. Venkataramani, Aljo Joseph, V. Senthil Kumar, Balaji
Srinivasan for the Respondent.
The Judgment of the Court was delivered by
H
CHELAMESWAR, J. 1. Leave granted.
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM
381
[J. CHELAMESWAR, J.]
2. The 5 petitioners herein filed O.S.No.100 of 2004,
A
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 s
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
c
the Tamil Nadu Industrial Investment Corporation Limited (for
short 'TNllC"). It is alleged in the plaint that Sengoda Gounder
wanted to clear the debts to the abovementioned two persons
D
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.
E
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
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to be amended by inserting para 1 OA, the details of which are
not necessary for the present purpose.
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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
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382
SUPREME COURT REPORTS
(2012] 6 S.C.R.
A '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 (1st representation)
B the plaint after a long delay on 03-05-2002 along with a courtfee 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
c (2nd representation) remitting a further amount of Rs.2,875/-
court-fee 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 (3rd representation) with an
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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 l.A.No.1532 of 2004, which was
allowed by an order dated 09-03-2005.
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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 l.A.No.76 of 2004 to condone the delay of
1328 days in the first of the abovementioned three
F 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.
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8. During the pendency of the abovementioned two
C.R.Ps., the 2nd defendant (sole respondent herein) filed ~is
written statement and also filed Application in l.A.No.3 of2006,
invoking Order-7 Rule-11 of the Code of Civil Procedure to.
reject the plaint. A week thereafter, on 29-12-2005, the plaintiffs ·
H filed l.A.No.1 of 2006, seeking amendment of the plaint.
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM
383
[J. CHELAMESWAR, J.]
9. l.A.No.1 of 2006 filed by the plaintiffs was allowed by
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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. l.A.No.3 of 2006 filed by the 2nd defendant/
respondent herein, was dismissed by an order dated 31-03B
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 c
allowed by the High Court by a common order dated 22-122006, setting aside the orders passed in l.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,
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Erode and renumbering the same as O.S.No.4 of 2005 on
its transfer by the Additional District Judge (FTC-IV), 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 (3rd 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
n1Jmbered as O.S.No.100 of 2004. Subsequently, the same
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-was transferred to Additional District Court (FTC-IV), Bhavani
and renumbered as O.S.No.4 of 2005. The initial presentation
and the 1st two representations, mentioned earlier, of the Suit
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were to the Sub Court, Bhavani, and the final representation
was to the District Court, Erode. lihe delay in representation, .
on the 1st two occasions, was condoned by the Sub Court,
Bhavani.
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384
SUPREME COURT REPORTS
[2012] 6 S.C.R.
12. The 2nd 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 1st 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 2nd defendant is a purchaser pendente lite
(plaint initially presented on 20-08-1998 and the 2nd
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 1st defendant
chose not to contest the suit;
(2) the sale in favour of the 2nd defendant is sham and
nominal; and
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM
385
[J. CHELAMESWAR, J.]
(3) payment of court-fee is purely a matter between the
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State and the plaintiffs and, therefore, the 2nd 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 I objections raised by the
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plaintiffs regarding the locus standi of the 2nd 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 2nd defendant,
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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
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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
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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,
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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
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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."
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386
SUPREME COURT REPORTS
[2012] 6 S.C.R.
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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
s or proceeding cannot be "transferred or otherwise dealt with",
so as to affect the rights of any other party to such a suit or
proceeding. The Section is based on the principle:
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" ........... 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
nova, subject to be defeated by the some course 5f
proceeding."
Belkamy v. Subina (1857) De. GEJ 566 at 588.
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 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 deemed to commence
from the date of the presentation of the plaint or the institution of the
proceeding in a court of compentent jurisdiction, and to continue until the
suit proceeding has been disposed of by a final decree or order and
complete satisfication or discharge of such decree or order has been
obtained, or has become unobtainable by reason of the expiration of ahy
period of limitation prescribed for the execution thereof by any law for the
time being in force."
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM 387
[J. CHELAMESWAR, J.]
Quoted with approval by this Court in Vinod Seth v. Devinder A
Bajaj (2010)8 sec 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 8
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.
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"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 o
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 E
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.
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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. G
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, H
388
SUPREME COURT REPORTS
[2012] 6 S.C.R.
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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
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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
c question, whether a 28pendent elite purchaser is entitled, as a
matter of right, to get impleaded in the suit, this Court in (2005)
11 sec 403, held that :
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"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 endent 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 /is pendens transferee a party,
under Order 22 Rule 10 an alienee endent 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 endent elite of an interest in immovable
property is a representative-in-interest 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
A. NAWAB JOHN & ORS. v. V.N. SUBRAMANIYAM
389
[J. CHELAMESWAR, J.]
is entitled to be heard in the matter on the merits of the
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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
B
for a long time. The Madras High Court in SL Lakshmana c
Ayyar vs.