Munna Kumar vs Smt. Anjani Devi
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.147 of 2017
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Munna Kumar Son of Late Ramdeo Prasad, Resident of Mohalla- Dighi
Talab, P.S.- Civil Lines, District- Gaya.
... ... Appellant/s
Versus
Smt. Anjani Devi Wife of Raj Ballam Singh, Resident of Village- Yamuna,
P.S.- Imamganj, District- Gaya.
... ... Respondent/s
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Appearance :
For the Appellant/s : Ms. Shubhangi Pandey, Advocate
Mr. Anand Vardhan, Advocate
For the Respondent/s : Mr. Pramod Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE RUDRA PRAKASH
MISHRA
C.A.V. JUDGMENT
Date : 03-09-2026
The present First Appeal has been preferred by the
appellant assailing the Judgment and Decree dated 10.02.2017
passed by the learned Additional District Judge-I, Gaya, in Title
Suit No. 01 of 2016 (arising out of Probate Case No. 31 of
2014), whereby the plaint was rejected under Order VII Rule
11(c) of the Code of Civil Procedure (hereinafter referred as
“CPC”).
2. The facts of the present case are that the appellant
initially instituted Probate Case No. 31 of 2014 before the Court
of the learned Additional District Judge-I, Gaya, seeking grant
of probate in respect of an alleged Will. Upon the respondents
entering caveat and disputing the Will, the probate proceeding
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became contentious and in terms of Section 295 of the Indian
Succession Act, 1925, was registered as Title Suit No. 01 of
2016.
2.1. During the pendency of the suit, the District
Magistrate, Gaya submitted a valuation report assessing the
value of the estate at 7,26,033/- ₹ . Based on the said valuation,
the learned trial Court directed the plaintiff to deposit the
requisite court fee. Subsequently, the defendants filed an
application under Order VII Rule 11(c) read with Section 151 of
the Code of Civil Procedure, seeking rejection of the plaint on
the ground that the plaintiff had failed to deposit the requisite
court fee despite the direction of the Court. The plaintiff, on the
other hand, filed a rejoinder opposing the said application and
sought permission to deposit the court fee at a later stage.
2.2. After hearing the parties and considering their
respective pleadings, the learned Additional District Judge-I,
Gaya, by Judgment and Decree dated 10.02.2017, allowed the
application filed by the defendants under Order VII Rule 11(c)
of the Code of Civil Procedure, rejected the plaint and dismissed
Title Suit No. 01 of 2016. Aggrieved thereby, the appellant has
preferred the present First Appeal.
3. Heard learned counsel for the appellant and learned
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counsel for the respondent.
4. Learned counsel for the appellant submits that the
learned trial Court has committed a manifest error in dismissing
Title Suit No. 01 of 2016 under Order VII Rule 11(c) of the
Code of Civil Procedure. It is contended that the proceedings
originated as a probate case under the Indian Succession Act
and, upon the caveat being filed, stood converted into a title suit.
Therefore, the provisions governing probate proceedings
continued to apply and the learned Court below erred in
mechanically invoking Order VII Rule 11(c) CPC.
4.1. It is further submitted that the appellant had
already expressed his willingness to deposit the requisite court
fee at the stage of grant of probate certificate and had moved an
application seeking permission to pay the same subsequently.
The learned Court below failed to consider the said application
and dismissed the suit without granting reasonable opportunity
to make good the deficiency in court fees.
4.2. Learned counsel for the appellant next contends
that there was no specific or speaking order directing the
appellant to deposit the court fee within a stipulated period so as
to attract the consequences contemplated under the proviso to
Order VII Rule 11(c) CPC. It is argued that the mandatory
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requirements of the provision were not complied with before
rejecting the plaint.
4.3. It is also submitted that the learned trial Court
failed to appreciate the oral and documentary evidence adduced
by the appellant and passed the impugned judgment on an
erroneous appreciation of law and facts. The appellant, being a
person of limited financial means, ought to have been granted
reasonable time or permitted to deposit the court fee in
installments instead of having the suit dismissed.
4.4. Lastly, it is submitted that the impugned judgment
is arbitrary, contrary to the record, suffers from non-application
of mind, and has resulted in grave miscarriage of justice. It is,
therefore, prayed that the impugned judgment and decree dated
10.02.2017 be set aside and the matter be restored for
adjudication on merits after granting the appellant an
opportunity to deposit the requisite court fee.
5. Learned counsel for the respondent submits that the
learned trial Court has rightly dismissed the suit under Order
VII Rule 11(c) of the Code of Civil Procedure, as the appellant
despite repeated opportunities failed to deposit the requisite
court fee. It is contended that, after receipt of the valuation
report, the learned trial Court by order dated 06.03.2016
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directed the appellant to deposit court fee on the valuation of
₹ 7,26,033/-. However, the appellant failed to comply with the
said direction despite being granted repeated opportunities.
5.1. It is further submitted that the provisions of
Section 19-I of the Court Fees Act mandate that no order
granting probate or letters of administration can be passed
unless the requisite court fee is paid on the valuation determined
in accordance with law. The appellant, despite being fully aware
of the statutory requirement, deliberately failed to deposit the
court fee and cannot seek indulgence after persistent non-
compliance.
5.2. Learned counsel for the respondent further
submits that the appellant’s plea that court fee could be paid at
the stage of issuance of the probate certificate is wholly
misconceived. Mere expression of willingness to pay court fee
at a future date cannot substitute compliance with the specific
direction of the Court. The appellant neither challenged the
order directing payment of court fee nor complied with the same
within the time granted.
5.3. It is also submitted by the respondent that the
appellant was afforded sufficient and adequate opportunity to
remove the defect. Despite repeated adjournments extending
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over several months, the appellant failed to deposit the requisite
court fee. Consequently, the learned trial court rightly invoked
the provisions of Order VII Rule 11(c) of the CPC and rejected
the plaint.
5.4. Learned counsel for the respondent further
contends that the conversion of the probate proceeding into a
contentious title suit does not exempt the appellant from
complying with the mandatory provisions relating to payment of
court fees. The appellant cannot avoid the statutory mandate
under the guise of the proceedings having originated as a
probate case.
5.5. Lastly, it is submitted that the impugned judgment
is based on proper appreciation of the pleadings, the statutory
provisions and the material available on record. The learned trial
court exercised its jurisdiction in accordance with law, and no
ground is made out warranting interference by this Hon’ble
Court. The appeal, being devoid of merit, deserves to be
dismissed.
6. Before adverting to the rival contentions advanced
by the parties, it would be appropriate to first consider the
relevant statutory provisions, namely, Sections 107 & 149,
ORDER VII Rule 11 of the Code of Civil Procedure and Section
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4 of Court-Fees Act, governing the controversy and the
principles of law laid down by the Hon’ble Supreme Court
which presently hold the field.
THE CODE OF CIVIL PROCEDURE, 1908
Section 107. Powers of Appellate Court.—(1) Subject to such
conditions and limitations as may be prescribed, an Appellate
Court shall have power—
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be
taken.
(2) Subject as aforesaid, the Appellate Court shall have the same
powers and shall perform as nearly as may be the same duties as
are conferred and imposed by this Code on Courts of original
jurisdiction in respect of suits instituted therein.
Section 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 court-fees 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 fee is payable, shall have the same
force and effect as if such fee had been paid in the first instance.
ORDER VII Rule 11. Rejection of plaint.— The plaint shall be
rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on
being required by the Court to correct the valuation within a time
to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
returned upon paper insufficiently stamped, and the plaintiff,
on being required by the Court to supply the requisite stamp-
paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be
barred by any law;
1
[(e) where it is not filed in duplicate;]
2
[(f) where the plaintiff fails to comply with the provisions of rule
9:]
3
[Provided that the time fixed by the Court for the correction of
the valuation or supplying of the requisite stamp-paper shall not
be extended unless the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by any cause of an
exceptional nature from correcting the valuation or supplying the
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requisite stamp-paper, as the case may be, within the time fixed
by the Court and that refusal to extend such time would cause
grave injustice to the plaintiff.]
THE COURT-FEES ACT, 1870
Section 4. Fees on documents filed, etc., in High Courts in their
extraordinary jurisdiction.-No document of any of the kinds
specified in the First or Second Schedule to this Act annexed, as
chargeable with fees, shall be filed, exhibited or recorded or
shall be received or furnished by, any of the said High Courts in
any case coming before such Court in the exercise of its
extraordinary original civil jurisdiction;
or in the exercise of its extraordinary original criminal
jurisdiction;
In their appellate jurisdiction .--or in the exercise of its
jurisdiction as regards appeals from the 1 [judgments (other than
judgments passed in the exercise of ordinary original civil
jurisdiction of the Court) or one] or more Judges of the said
Court, or of a Division Court;
or in the exercise of its jurisdiction as regards appeals from the
Courts subject its superintendence;
As Courts of reference and revision. --or in the exercise of its
jurisdiction as Court of reference or revision; unless in respect of
such document there be paid a fee of an amount not less than that
indicated by either of the said Schedules as the proper fee for
such document
7. The Hon’ble Supreme Court, in Mannan Lal vs.
Mst. Chhotka Bibi (dead) by her Legal Representatives and
Others , reported in AIR 1971 SC 1374, while considering the
issue involved, laid down the relevant principles in paragraphs
12, 13 and 14 of the judgment. The said paragraphs, being
relevant for the present purpose, are reproduced hereinbelow:
12. 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.
13. In our view in considering the question as to the
maintainability of an appeal when the Court-fee paid was
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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 effort 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.
14. Apart from the decisions bearing on the point, 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 provision which can only be done by reading
Section 149 as a proviso to section 4 of the Court must 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. If such a
construction be accepted, the bar of Section 3 of the Abolition
of Letters Patent Appeals Act of 1962 would not operate in the
instant case.
8. The principal question which falls for
determination is whether the learned trial Court was justified in
rejecting the plaint under Order VII Rule 11(c) of the Code of
Civil Procedure solely on account of non-payment of the
requisite court fee without examining the scope and
applicability of Section 149 of the CPC.
9. Section 4 of the Court Fees Act, 1870, undoubtedly
mandates that no document chargeable with court fee shall be
received, filed or acted upon unless the requisite court fee has
been paid. The provision embodies the general rule requiring
payment of proper court fee before the Court acts upon a
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document. However, Section 4 cannot be construed in isolation
so as to render nugatory the express power conferred upon the
Court under Section 149 of the CPC.
10. Section 149 of the CPC is a beneficial provision
enacted to mitigate the rigour of the Court Fees Act. It confers a
discretionary power upon the Court to permit a litigant, who has
paid insufficient court fee, to make good the deficiency within
such time as the Court may fix. The legal consequence of such
payment is specifically provided in the section itself, namely,
that upon payment of the deficient court fee, the document shall
have the same force and effect as if the requisite court fee had
been paid in the first instance.
11. The true relationship between Section 4 of the
Court Fees Act and Section 149 CPC is no longer res integra. In
Mannan Lal v. Mst. Chhotka Bibi, AIR 1971 SC 1374 , the
Hon’ble Supreme Court authoritatively held that Section 4 of
the Court Fees Act is not the last word on the subject and that
both enactments must be harmoniously construed. Their
Lordships categorically held that Section 149 CPC operates as a
proviso to Section 4 of the Court Fees Act, thereby enabling the
Court to permit payment of deficient court fee even after
institution of the proceeding. It was further held that once such
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deficiency is made good pursuant to the permission granted by
the Court, the proceeding relates back to the date of its original
presentation, not merely for the purposes of limitation but also
for determining the sufficiency of court fee. Thus, the initial
defect stands completely cured by operation of law.
12. The aforesaid principle has been reaffirmed by the
Hon’ble Supreme Court in A. Nawab John v. V.N.
Subramaniyam, (2012) 7 SCC 738 , wherein it was held that
although the power under Section 149 CPC is discretionary,
such discretion must be exercised judicially and in furtherance
of substantial justice. The Court further observed that a litigant
ought not to be non-suited merely because of deficiency in court
fee when the defect is curable and sufficient cause has been
shown. The discretion under Section 149 CPC is intended to
advance the cause of justice rather than defeat it on technical
considerations.
13. Viewed in the backdrop of the aforesaid settled
legal position, the approach adopted by the learned trial court
cannot be sustained. The records reveal that after the valuation
report was received, the appellant sought permission to deposit
the requisite court fee and expressed willingness to comply with
the statutory requirement. The learned trial Court, however,
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proceeded to reject the plaint under Order VII Rule 11(c) CPC
without examining whether the facts of the case warranted
exercise of the discretionary jurisdiction under Section 149
CPC. The impugned judgment neither considers the scope of
Section 149 CPC nor records any finding as to why the
appellant was disentitled from the benefit of the said provision.
14. Order VII Rule 11(c) CPC undoubtedly
empowers the Court to reject a plaint where the requisite court
fee is not paid within the time granted. However, such power
cannot be exercised mechanically or divorced from the mandate
of Section 149 CPC. Both provisions operate in the same field
and must receive a harmonious construction. Before resorting to
the drastic consequence of rejection of the plaint, the Court is
duty-bound to consider whether the deficiency in court fee can
appropriately be permitted to be made good in exercise of its
powers under Section 149 CPC. Failure to undertake such
exercise amounts to failure to exercise jurisdiction vested by
law.
15. The impugned judgment further discloses that the
learned trial Court proceeded on the erroneous premise that non-
payment of court fee automatically attracted the consequences
contemplated under Order VII Rule 11(c) CPC. Such an
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interpretation overlooks the statutory discretion expressly
preserved under Section 149 CPC and runs contrary to the law
declared by the Hon’ble Supreme Court. Procedural law is
intended to facilitate adjudication on merits and not to foreclose
valuable rights on account of defects which are admittedly
curable.
16. In the facts of the present case, there is nothing on
record to indicate that the appellant had acted deliberately,
contumaciously or with an intention to abuse the process of the
Court. On the contrary, the materials on record disclose that the
appellant sought permission to deposit the deficient court fee. In
these circumstances, the learned trial Court ought to have
considered the appellant’s prayer in the light of Section 149
CPC instead of invoking the drastic consequence under Order
VII Rule 11(c) of the CPC.
17. Accordingly, this Court is of the considered
opinion that the learned trial Court committed a manifest error
of law in rejecting the plaint without first exercising its
jurisdiction under Section 149 CPC in accordance with the
principles laid down in Mannan Lal (supra) and A. Nawab
John (supra) . The impugned Judgment and Decree, therefore,
suffer from material illegality and non-exercise of jurisdiction
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and are liable to be set aside.
18. The appeal is, accordingly, allowed. The
Judgment and Decree dated 10.02.2017 passed by the learned
Additional District Judge-I, Gaya, in Title Suit No. 01 of 2016
(arising out of Probate Case No. 31 of 2014) is hereby set aside.
The matter is remitted back to the learned trial Court with a
direction to the appellant to deposit the deficient court fee
within a period of one month from date of judgment. Upon such
deposit, the suit shall stand restored to its original file and shall
thereafter be proceeded with and decided on its own merits,
uninfluenced by any observation made herein.
(Rudra Prakash Mishra, J)
Alok Verma/-
AFR/NAFR NAFR
CAV DATE 08.07.2026
Uploading Date 03.09.2026
Transmission Date N/A