Dismissed

Hathimunnisa v. Chandrasekaran

Madras HC30 Oct 2019CRP/3484/2019

Case brief

AI extract

What is this about?

In this Civil Revision Petition, the High Court of Madras quashed the order rejecting an amendment application filed under Order 6 Rule 17 CPC. The revision petitioners contended the trial court failed to consider the limitation issue and the plaintiff filed the suit with insufficient court fee. The Court held the limitation issue was already before the first appellate court and no separate amendm

What did the court decide?

Civil Revision Petition dismissed; connected miscellaneous petition also dismissed. No costs.

Hathimunnisa Vs Chandrasekaran — Contract and Commercial Disputes | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 30.10.2019

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CORAM

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THE HON'BLE MR.JUSTICE R. SURESH KUMAR

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C.R.P.No.3484 of 2019 and C.M.P.No.22993 of 2019

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1.Hathimunnisa
2.Sharmila Banu
3.Thasrima Banu ... Petitioners
-Vs-
1.Chandrasekaran
2.Peer Mohamed
3.Mohamed Hasan ... Respondents
Prayer : Civil Revision Petition under Article 227 of the
Constitution of India against the fair and decreetal order dated
18.03.2019 passed in I.A.No.195 of 2018 in A.S.No.9 of 2017 on
the file of the Court of II Additional District Judge,
Chidambaram.

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For Petitioners : Mr.A.Muthukumar O R D E R

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This revision has been filed against the fair and decreetal order dated 18.03.2019 passed in I.A.No.195 of 2018 in A.S.No.9 of 2017 on the file of the Court of II Additional District Judge, Chidambaram.

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Before the trial Court, the first respondent herein was the plaintiff and, the present revision petitioners and second and third respondents herein were the defendants. The suit was filed for recovery of money on two promissory notes, which was decreed by the trial Court, as against which the unsuccessful defendants filed an appeal, where the present application had been filed by them under Order 6 Rule 17 of C.P.C., to seek for amendment and the said application having been considered by the first appellate Court, was rejected through the impugned order. Aggrieved over the same, the present revision has been filed.

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I have heard Mr.Muthu Kumar, learned counsel for the revision petitioners, who would submit that, the suit was laid

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https://hcservices.ecourts.gov.in/hcservices/

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by the plaintiffs on the basis of two promissory notes dated 14.05.2005 and 22.08.2005 for recovery of a sum of more than Rs.4,21,000/-. In this context, it is the specific case of the revision petitioners / defendants before the trial Court that, the first promissory note was dated 14.05.2005 and therefore, the three years limitation ended on 14.05.2008. On or before the said date, the suit should have been laid, whereas admittedly the suit was laid on 02.06.2008 on the ground that during the month of May 2008, the Court was on summer vacation and therefore, immediately after summer vacation on the very reopening date ie., on 02.06.2008, since the suit was laid, it was not hit by limitation.

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However, in this context, it is the case of the revision petitioners / defendants before the trial Court that, even though the suit was filed on 02.06.2008 ie., the reopening date after summer vacation, the suit was not properly stamped ie., the court fee has not been properly paid, as the Court fee of Rs.31,585/- though ought to have been paid by the plaintiffs when the suit was filed on 02.06.2008, only a sum of Re.1/- was paid and subsequently, without any application seeking permission from the Court to condone the delay of paying the deficit court fee, subsequently the deficit court fee, after return of the plaint papers, seems to have been paid by the plaintiffs. Thereby, the limitation had not been saved in view of the said defect.

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In this context, the learned counsel for the petitioners would point out that at para No.7 of the written statement filed by the defendants before the trial Court, they specifically raised the said point of limitation in the following terms:-

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“7/ thjpapd; gpuhk;rhp nehl;L 14/5/2005 njjpapy; Vw;gl;ljhf cs;sJ/ mjw;F 14/05/2008 njjp fhyhtjp/ Mdhy;. ePjpkd;wk; tpLKiw vd;gjhy;. 2/6/2008y; jhf;fy; bra;ag;gl;Ls;sJ/ 2/6/2008 njjpapy; ePjpkd;wf; fl;lzkhf U:/31.585-? brYj;jpapUf;f ntz;Lk;/ Mdhy;. thjp 2/6/2008y; U;/1-? kl;Lnk ePjpkd;wf; fl;lzkhf brYj;jpa [s;shh;/ kPjpf; fl;lzk; brYj;j fhyf;bfL ePl;og;g[ nfl;L rl;lg;go kD bfhLj;J bfL ePl;og;g[ cj;jut[ vJt[k; bgwtpy;iy/ kPjpa[s;s ePjpkd;wf; fl;lzk; 29/7/2008y; jhd; brYj;jg;gl;Ls;sJ/ vdnt. 2/6/2008y; KGikahd ePjpkd;wf; fl;lzk; brYj;jhjjhYk;. ePjpkd;wj;jpy; kD bfhLj;J fhyf;bfL ePl;og;g[ bgwhjjhYk; V?gpuhk;rhp nehl;ilg; bghWj;J tHf;F fhyhtjp rl;lj;jpdhy; ghjpf;fg;gl;Ls;sJ/ vdnt. tHf;F js;Sgof;F mUfkhdJ/”

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Learned counsel for the revision petitioners further submits that, despite the said issue having been raised by the defendants before the trial Court, the trial Court has not considered the same in proper perspective. Therefore, during the appeal, which is presently pending before the first appellate Court, it became necessitated for the defendants to file the

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https://hcservices.ecourts.gov.in/hcservices/

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present application seeking for amendment amending the prayer with regard to the first promissory note on limitation and the second promissory note for some other reasons and therefore, the said application filed for seeking amendment since has been rejected without considering the issue in proper perspective through the impugned order, the learned counsel for the petitioners would submit that it requires interference from this Court in this Civil Revision Petition.

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I have considered the submissions made by the learned counsel for the petitioners and have perused the materials placed on record.

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Admittedly, the suit was filed after the limitation period ie., on 02.06.2008. However, when the limitation expired on 14.05.2008, the Court was in summer vacation and on the very reopening date, the suit was filed. Therefore, insofar as the filing of the suit is concerned, we have no quarrel that it has been filed in time. At the same time, whether the suit was filed with insufficient court fee is a question to be answered. It is evidenced from a perusal of the documents before this Court that, the correct Court fee has not been paid by the plaintiffs / respondents at the time of filing of the suit and only subsequently it has been paid. However, in this context, it is the specific case of the revision petitioners / defendants that when the deficit court fee has subsequently been paid, for which no orders has been passed, permitting them to pay the deficit court fee belatedly, on an application to be filed under Section 149 of C.P.C., the said defect cannot be cured at any point of time. Therefore, in order to adjudicate the said issue, the present amendment is required.

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In this context, I have gone through the judgment made by the trial Court in O.S.No.63/2008, where the learned Judge has framed four questions in the suit, out of which issue No.3 relates to the limitation, which reads as follows:-

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“ 3) thjpapd; tHf;fhdJ fhytiuaiw rl;lj;jhy; ghjpg;gile;Js;sjh>”

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The learned Judge has answered the aforesaid issue No.3 on the point of limitation at Para 15 of the judgment, which reads as follows:-

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“15/ vGtpdh vz;/3 ;? jhth gpuhkprhp nehl;Lf;fs; 14/5/2005 kw;Wk; 22/8/2005 Mfpa njjpfspy; vGjpf;bfhLf;fg;gl;ljhft[k;. 14/5/08y; Kjy; gpuhkprhp nehl;ow;fhd fhytiuaiw Kot[w;whYk;. me;j rkak; ePjpkd;wj;jpw;F nfhil tpLKiw vd;gjhy;. 2/6/2008k; njjpapy; tHf;F ePjpkd;wj;jpy; Kjd; Kjypy; jhf;fy; bra;ag;gl;Ls;sJ/ gpd;dh; ePjpkd;w fl;lzk; KGikahd ePjpkd;w fl;lzk; brYj;jg;gl;L. 04/09/2008y; tHf;F nfhg;gpy; vLf;fg;gl;Ls;sJ/ Mf ePjpkd;w nfhil tpLKiw Koe;J chpa fhyk; vd;gjhy;. ,e;j tHf;fhdJ fhyhtjp njhc&j;jhy; ghjpg;gilatpy;iy vd;W ,e;j vGtpdhtpw;F tpil fhzg;gLfpwJ/ ”

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Therefore, the issue of limitation, especially in the context of belated payment of deficit Court fee on plaint also was one of the issues, which was raised by the defendants in the suit and the same had been framed as one of the issues by the trial Court and had been answered, of course against the defendants. Therefore, when they filed the present appeal before the first appellate Court, the said issue is also one of the issues to be decided by the first appellate Court, as that can also be very well adjudicated by the revision petitioners, who are the appellants before the first appellate Court.

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Therefore, for the said purpose, this Court feels that, no separate amendment need to be made as the very issue of limitation is the core issue and if it is decided by the first appellate Court ultimately against the plaintiffs and in favour of the defendants, definitely that will have a bearing on the very appeal itself and hence, this Court feels that, for the purpose of deciding the said issue concurrently along with the other issues, which are the subject matter before the first appellate Court, no separate amendment need to be made.

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In that view of the matter, the rejection of the amendment application through the impugned order cannot be found fault with. In result, the Civil Revision Petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.

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Sd/Assistant Registrar(J)

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//True Copy//

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Sub Assistant Registrar

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The IInd Additional District Judge, Chidambaram.

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+1cc to Mr.A.Muthukumar, Advocate Sr.89811

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C.R.P. No.3484 of 2019

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srg 07/02/2020

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Hathimunnisa v. Chandrasekaran

Case brief

What is this about?

What did the court decide?

Hathimunnisa v. Chandrasekaran

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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