Brundaban Das vs Bandhu Padhan

Kulwant Sahay, J.—The plaintiff as the landlord instituted a suit before the Deputy Collector of Khurda against the defendant whom he described as his agent for accounts. A preliminary decree was made by the Deputy Collector for accounts. Against that preliminary decree the defendant went in appeal before the District Judge.

The District Judge has dismissed the suit on a preliminary ground without going into the merits of the appeal on a finding that the suit was not maintainable inasmuch as a previous suit instituted by the plaintiff on the same cause of action had been dismissed for default on a previous date and the present suit was barred under Order 9, Rule 9, Civil P.C. The previous suit was dismissed on 23rd December 1927 under the following order:

Plaintiff absent. The court-fee has not been paid nor the certificate produced. The defendant is present. The plaintiff takes no steps. The case is struck off for default. The plaint is rejected.

The question is whether by this order there was a rejection of the plaint for nonpayment of the deficit court-fee or whether it was a dismissal of the suit for default. The certificate referred to in the order of 23rd December 1927 was a certificate which the Deputy Collector wanted the plaintiff to produce from the Munsif to the effect that the deficit court-fee had been paid in his Court and was still unused.

Therefore it is clear that the plaintiff''s suit was not dismissed for default on merits but it was really a rejection of the plaint for nonpayment of the proper court-fee, and it came under Order 7, Rule 11. It is remarkable that this objection was taken in the written statement before the Deputy Collector, yet it was not pressed before him at the trial. The Deputy Collector who passed the order of 23rd December 1927 was the same officer who subsequently tried the present suit and made the preliminary decree and he was the best person to interpret his own order of that date.

I am of opinion that the view taken by the District Judge was not correct and the suit was not barred by Order 9, Rule 9, Civil P.C. The result is that the decree made by him will be set aside and the case remanded to him for disposal according to law. Costs will abide the result.