Chhabi Sindhu Soni And Others vs Shri Shankar Lal Soni And Others

Petitioners are plaintiffs and respondents are defendants before the trial Court. For sake of convenience petitioners are hereinafter referred to as plaintiff and respondents as defendants in this order. Plaintiffs had filed a suit for declaration of title, declaration that mutation order of Revenue Court is null and void and for permanent injunction against Shankarlal Soni, i.e. defendant no.1.

Defendants had filed a counter claim before the trial Court against the plaintiffs. Trial Court vide impugned order dated 01.08.19 had directed the plaintiffs to pay deficit court fees of Rs.60,380 on the plaint and defendants to pay deficit court fees of Rs.1,56,573/- on the counter claim. Plaintiffs were directed to deposit the deficit court fees within a period of seven days otherwise their plaint will be rejected. Trial Court again granted many opportunities to the plaintiffs to pay deficit court fees on 09.08.19, 19.08.19, 20.08.19 and also on 22.08.19. Since court fee was not paid by the plaintiffs, trial Court was left with no other option but to reject the plaint under Order 7 Rule 11 of Code of Civil Procedure. Plaintiffs filed miscellaneous petition challenging order dated 01.08.19, by which they were directed to pay ad-valorem deficit court fee of Rs.60,380/-. Later on miscellaneous petition was amended and order dated 22.08.19 was also challenged by which plaint was rejected.

Defendant had filed an I.A. bearing No.617/2020 before this Court for vacating stay order dated 26.08.19 and to dismiss the petition as not maintainable. It is pleaded by the defendant that an appeal will lie against an order of rejection of plaint under Order 7 Rule 11 of CPC. The order passed by trial Court dated 22.08.19 is a decree within the meaning of Section 2(2) of Code of Civil Procedure and therefore, appeal under Section 96 of CPC is maintainable against the impugned order. He relied on judgment reported in AIR 1973 SC 2384: Shamsher Singh vs. Rajendra Prasad and others. In para 3 of the said judgment it has been held by the Hon'ble Apex Court as under: -

" In the present case the plaint was rejected under Order 7, Rule 11 of CPC. Such an order amounts to a decree under Section 2(2) and there is a right of appeal open to the plaintiff. Furthermore, in a case in which this Court has granted special leave the question whether an appeal lies or not does not arise. Even otherwise a second appeal would lie under Section 100 of CPC on the ground that the decision of First Appellate Court on the interpretation of Section 7(iv)(e) of CPC is a question of law. There is thus no merit in the preliminary objection."

On aforesaid basis defendant has prayed for dismissal of miscellaneous petition.

Learned counsel appearing for plaintiff submitted that though there is an alternate remedy for filing an appeal against an order rejecting the plaint under Order 7 Rule 11 of CPC, but this Court has held that an application under Section 151 of CPC can be filed for restoration of plaint. He relied on judgment reported in 2000 (1)MPWN Short Note 77, Ajab Singh vs. Amar Singh.

Counsel appearing for defendant also relied on order dated 22.02.18 passed in miscellaneous petition No.1132/2017. In this case learned Single Judge has relied on the judgment passed in Ajab Singh (supra) and also judgment reported in 2016 (1) MPLJ 358, Pravesh Pathak and others vs Shakuntala Sharma and others . Learned Single Judge has also relied on Full Bench judgment passed by High Court of Orissa reported in AIR 1980 Orissa 162, E.I.D. Parry Ltd. vs. M/s Agro Sales and Service and others. On the strength of said judgment it was argued by the counsel that in spite of availability of alternate remedy of filing an appeal, miscellaneous petition filed by the petitioner may be entertained by this Court.

Heard the counsel appearing for plaintiffs as well as defendants.

It is clear from the pleadings made by the plaintiff that he has not filed any application under Section 151 of Code of Civil Procedure for restoration of civil suit on the ground that he wanted to pay the court fees. Had he filed an application under Section 151 of CPC for restoration of suit to enable him to pay the Court fees then power under Section 151 of CPC can be invoked by the trial Court for restoration of the case. There is no quarrel to such proposition. In this case plaintiff has not filed any application for restoration of civil suit. Plaintiffs had challenged the order passed by the trial Court dated 1.08.19 and order dated 22.08.19 on merits. Plaintiffs had filed miscellaneous petition before this Court on

08.19. Thereafter trial Court has dismissed the civil suit vide order dated 22.08.19. Against the said order plaintiff has a remedy to prefer an appeal under Section 96 of the Code of Civil Procedure. Plaintiffs had not filed any application for payment of court fees and restoration of his case under Section 151 of CPC, but had challenged the order passed by the trial Court on its merits. This Court will not entertain miscellaneous petition under Article 227 of the Constitution of India when plaintiff/petitioner had a remedy to file an appeal under Code of Civil Procedure. Judgments relied upon by petitioners/plaintiffs are of no help to him as in that case application filed for restoration of civil suit under Section 151 of CPC was dismissed by the trial Court and same was under challenge before this Court in civil revision.

In none of the cases cited by the plaintiffs /petitioners this Court exercise of power of judicial review under Article 227 of the Constitution of India when an alternate remedy of appeal was available to the petitioner. This Court has only held that application under Section 151 of CPC is maintainable before the trial Court for restoration of the case for non-payment of fee as there is no specific provision in Code of Civil Procedure for restoration of case.

In view of aforesaid facts and circumstances of the case I.A. No.617/20 filed by respondents is allowed and miscellaneous petition filed by the plaintiffs/petitioners is dismissed with liberty that they may prefer an appeal under Code of Civil Procedure, challenging the order on merits or may file an application under Section 151 of C.P.C. for restoration of case, if they so desire.