Atul Krishna Banerjee vs Bhowrilal Seraogi

Deka, J.—This is an application under S. 115, Civil P.C. on which a Rule was issued on the plaintiff opposite-party to show cause why the order dated 11-8-1951 of the Munsiff of Gauhati restoring Title Suit No. 3 of 1950 should not be set aside.

Suit No. 3 of 1950 was filed by the Opposite Party Bhowrilal Seraogi in the Court of the Munsiff at Gauhati on 6-1-1950 valuing the relief at Rs. 845-15-0. Defendant 3 took an objection to the valuation and after an enquiry in course of which evidence was adduced by the parties, the learned Munsiff by his order dated 25-1-1951 held that the suit should be valued at Rs. 1,732 and the plaintiff was required to pay an additional court-fee of Rs. 72. On 31-1-1951, the plaintiff''s lawyer filed a petition praying for time to file an amended plaint as well as the additional court-fee on which time was extended up to 8-2-1951. On 8-2-1951 the plaintiff defaulted in appearance and his pleader''s prayer for further extension of time for putting in the requisites was rejected and the suit was dismissed for plaintiff''s default. On 3-3-1951, the plaintiff applied for restoration of the suit under O. 9, R. 4, Civil P.C., and a miscellaneous proceeding i.e. Misc. case No. 58 of 1951 was started on the basis of that application. That proceeding was also struck off on 28-4-1951 due to want of steps by the plaintiff.

On 8-5-1951 the plaintiff made a further application purported to be one under S. 151, Civil P.C., praying for restoration of the original suit by vacating the order dated 8-2-1951. On 11-8-1951 the learned Munsiff restored the suit (Suit No. 3/1950) and accepted the amended plaint and additional court-fee supplied by the plaintiff. Defendant 3 Atul Krishna Banerjee has moved this Court challenging the validity of the order of the learned Munsiff dated 11-8-1951 on the ground that no proceeding under O. 9, R. 4, Civil P.C., was maintainable in the present case i.e., against an order of rejection of a plaint under O. 7, R. 11, Civil P.C., and that an application under S. 151, Civil P.C., would not lie against such an order.

Mr. Das appearing for the petitioner has relied in support of his contention on two of the decisions of the Calcutta High Court reported in S.M. Bose and Others Vs. Hafiz Md. Fateh Nasib and Another, and Sarat Chandra v. Mrityunjay Ray, 62 Cal. 61. In my opinion, these two cases lay down the correct proposition in law and in my view neither a proceeding under O. 9, R. 4, Civil P.C., nor a petition under S. 151, Civil P.C., would be competent under such circumstances. Order 9, R. 4, Civil P.C., relates to laches of Rr. 2 and 3 of O. 9, Civil P.C., and it has nothing to do with an order passed under O. 7, R. 11, Civil P.C., relating to rejection of a plaint which amounts to a decree and is appealable. There may be some dispute as to whether a review petition under O. 47, R. 1, Civil P.C., would be competent but there is no doubt that the order rejecting the plaint can be appealed against. It is further provided under O. 7, R. 13, Civil P.C., that the plaintiff can bring a fresh suit after the plaint is rejected for not supplying the required court-fee. In this case the order dated 8-2-1951 indicates that the suit was dismissed for non-payment of court-fees and for not putting in the amended plaint. This is clearly an order under R. 11 of O. 7, Civil P.C., and I cannot accept the contention on behalf of the Opposite Party that this order was not one under cl. (c) of O. 7, R. 11. The relief against the order dated 8-2-1951 available to the plaintiff was therefore two-fold : he might either have brought a fresh suit or he could have appealed against that order, and he not having chosen to avail either of these legal remedies, his application under S. 151, Civil P.C., would not lie.

It has been contended on behalf of the opposite party that the court-fees and the amended plaint having once been accepted by the learned Munsiff, it ought to be treated as sufficient compliance with the order of the learned Munsiff and the order dated 11-8-1951 restoring the suit on acceptance of these requisites should be treated as a valid order under S. 151, Civil P.C., and Mr. Sen relied on two of the reported cases Bachan Singh Vs. Dasrath Singh, and AIR 1944 327 (Oudh) . These two cases are, however, fairly distinguishable from the present case.

In Bachan Singh Vs. Dasrath Singh, the court-fee was paid beyond the period granted for so doing -- but the suit was restored to original number on the deficit court-fee being paid, by an order purporting to be one under S. 151, Civil P.C. In Munshi Ram v. Sun Life Assurance Co., Canada, AIR 1344 Oudh 327 --the lower Court refused to accept the court-fee paid with an application for restoration of the suit but the High Court in revision permitted the trial Court to accept the Court-fee tendered and treat the petition as a fresh plaint presented under O. 7, R. 13, Civil P.C. In this case, no court-fee was tendered along with the petition for restoration of the plaint nor a prayer made for appropriating the court-fee already deposited towards a fresh plaint presented under O. 7, R. 13, Civil P.C., but the plaintiff only signified his consent to deposit the court-fee on his prayer being granted for restoration of the suit either under O. 9, R. 4, Civil P.C., or under S. 151, Civil P.C. These two decisions have therefore, no application to the circumstances of the present case.

Mr. Sen had placed before me the decision reported in Anant Prasad Singh Vs. Chunnu Tewari and Others, -- and there the learned Judge had decided more on facts than on law.

Mr. Sen further contended that the High Court should not interfere in revision with an order under S. 151, Civil P.C., and he relied on two of the reported cases-- Dindayal Shah Vs. Hara Prasad Jadav Chand, and Sarat Chandra Haldar Vs. Mitra Mukerjee and Co. and Another, in support of his contention. There is no discussion of the principle in Dindayal Shah Vs. Hara Prasad Jadav Chand, and there is nothing in Sarat Chandra Haldar Vs. Mitra Mukerjee and Co. and Another, in principle that I do not agree with, -- but there is ample margin when the High Court can interfere in revision against an order passed under S. 151, Civil P.C., under certain circumstances. It is now practically a settled law that; an order under S. 151, Civil P.C., can be interfered with in revision when the Court below refuses or fails to exercise the discretion properly and the circumstances have to be examined in each case to see whether the discretion has been properly exercised and within the limits prescribed by law. This point was a subject for consideration in the case reported in Sarat Chandra v. Mrityunjay Ray, 62 Cal. 61 and the order passed under S. 151 was interfered with in revision. I agree with this view and hold that the order dated 11-8-1951 purporting to be one under S. 151 is liable to be set aside and accordingly it is vacated and the order dated 8-2-1951 is restored with the consequence that the plaint stands rejected.

The rule is made absolute but in the circumstances of the case, I make no order as to costs.