BHANU VIKRAMA PANICKER Vs. JANAKI AMMA
HIGH COURT OF KERALA
BHANU VIKRAMA PANICKER
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(1.) This appeal is by defendants 2 to 7 in a suit for recovery of landed property on strength of title. The suit property belonged to one Mutharakkal tarwad, and has been allotted in partition in 1918 to Kunhikrishna Panicker, subject to certain liabilities. As he did not discharge those liabilities, the creditor sued in O. S. No. 306 of 1924 on the file of the Munsif, Chowghat, and got a decree charged on the property. The plaintiff got an assignment of the decree, executed it and purchased the suit property in court sale on July 1, 1942, Ext. A5 being the relative sale certificate. He obtained delivery of the property on September 15, 1942. Defendants 1 and 2 obtained a conveyance of the property from Kunhikrishna Panicker in 1922 as per Ex. B1. Defendants 3 to 7 are members of their tavazhi. The present suit by the plaintiff is to recover the property from defendants 1 to 7 on the ground that in spite of the delivery proceedings under Ext. A5, the defendants continued on the property. The defendants contended the suit to be barred by limitation, but it has been repelled by the courts below. In this appeal, the contention is repeated urging that the institution of this suit beyond 12 years of the date of delivery in the former suit is barred under Art.142 of the Limitation Act, 1908. The question then is as to the date of presentation of this suit.
(2.) This suit was originally instituted in the Court of the Munsif, Chowghat, on September 15, 1954, that is exactly the eve of expiry of 12 years from the date of delivery in the prior suit. The value of the property for purposes of court fee was shown in the plaint at Rs. 1630 odd but only a court fee of one rupee was paid on it that day. The court ordered on September 16.
"Court fee paid not sufficient. The plaint copies not produced. Returned. Time one week."
Obviously by the above order, the court allowed a week for payment of the deficit court fee payable on the plaint. On September 18, 1954, the plaint was represented with the entire court fee paid thereon. The defendants then contended the suit to be undervalued, whereupon the plaintiff applied for a return of. the plaint for presentation to the Subordinate Judge's Court. It was returned on February 25, 1955 and was presented on the same day in the Subordinate Judge's Court, Ottapalam. The controversy is whether the institution of the suit was on September 18, 1954, or on February 25, 1955, which to the date is beyond 12 years of the plaintiff's dispossession by the defendants, as it is admitted that the defendants continued in possession of the property in spite of the delivery had on September 15, 1942.
(3.) When a plaint is insufficiently stamped the court may, under S.149 CPC., allow the plaintiff to pay the deficit court fee and when it is paid in accordance with the court's order the plaint has to be deemed properly stamped in the first instance. The court having allowed a week's time from September 16, and the deficit court fee having been paid on September 18, the case comes strictly under S.149 CPC. For all purposes the entire court fee has therefore to be deemed to have been paid on September 15 itself. The " contention that the valid presentation of the plaint was only on September 18, 1954, has therefore to be overruled under S.149 CPC.;
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