Dinesh Kumar and others vs Sukhbir Singh and others

Harbans Lal, J.—A suit for pre-emption was filed by Sukhbir Singh, minor, respondent, through his next friend Jaswant Singh. On scrutiny, it was found that there was deficiency in the Court fee on the plaint as filed, to the tune of Rs. 1,470. By order of the trial Court, this deficiency was allowed to be made good by July 25, 1977. On this date Shri Ranbir Singh, counsel for the minor plaintiff made his statement that the deficiency in the Court fee could not be made good and the suit may be dismissed. The trial Court consequently rejected the plaint on July 25, 1977. On August 24, 1977, that miner plaintiff through another next friend, Shamsher Singh, his maternal uncle, filed a petition u/s 151 Code or Civil Procedure, (hereinafter called the Code), praying that the previous guardian of the minor plaintiff had not protected the interests of the minor and did not make good the deficiency in Court fee and as such, the suit may be restored and the deficiency in the Court fee may be allowed to be paid. Another suit for preemption had been filed by the present petitioners. They contested the application filed on behalf of the minor on the ground that the order rejecting the plaint in the suit filed on his behalf could be challenged in appeal which remedy was not availed of, nor was any application for review of the order made, and, therefore, the suit could not be restored u/s 151 of the Code. The trial Court, however, allowed the application of the minor and ordered restoration of the suit. Permission was also granted to pay the deficient Court fee. This order has been challenged in the present revision petition.

According to the learned counsel for the petitioners, the provisions of section 151 of the Code could not be availed of, nor could any order be passed by the trial Court in the exercise of its inherent jurisdiction under the said provision when a specific remedy by way of appeal and review are provided under the Code. Reliance has been placed on Saratchandra Sen Vs. Mrityunjay Ray Chaudhuri, (2), Radhanath Jha Vs. Bacha Lal Jha and Others, , Ramautar Tiwari and Others Vs. Jagdish Singh and Others, Mohd. Yunus and another v. Sugra Begum and others AIR 1955 Hyd 156, and Hubraj Singh and Others Vs. Mst. Rama Dasi Kuer and Another, , relied upon by the trial Court in support of its decision has also been distinguished.

In Saratchandra Sen''s case it was held that where a suit was filed at the time when the claim was about to be barred by limitation and the plaint is rejected by the Court, the plaintiff is entitled to get the order of rejection set aside in appeal and the Court has no jurisdiction to set aside the same u/s 151 of the Code.

In Radhanath Jha''s case (supra) a Full Bench of the Patna High Court held that in case, appeal preferred in the High Court was dismissed for default of payment of requisite Court fee, the proper remedy was by way of an application for review under Order XLVII rule 1 of the Code and application u/s 151 of the Code was not maintainable. However, the application filed by appellant u/s 151 of the Code was treated as an application for review and the same was allowed and the deficiency in the Court fee was allowed to be made good.

In Ramautar Tiwari''s case (supra) the decision given in Radhanath Jha''s case (supra) was endorsed.

In Mohd. Yunus''s case (supra), it was held that when there was a specific remedy provided, recourse to section 151 of the Code would not be an appropriate remedy. It was further held that section 151 of the Code should be applied with great caution and that in exercising the power under this section, the Court should bear in mind the interests of both the parties.

On the other hand, the learned counsel for the respondents has relied upon Muhammad Shafi, Muhammad Ayub v. Delhi House of Multan AIR 1926 Lah 274, Atma Ram Kejriwal and others v. Abhay Kumar Sinha and others 1963 ILR, Bahadur Pradhani v. Gopal Patel AIR Ori 134, wherein it has been held that the inherent powers u/s 151 of the Code can be exercised in such circumstances and should be exercised to prevent the abuse of the process of the Court.

In none of the cases relied upon by the learned counsel for the petitioners, the interest of the minor was involved as in the present case. It is really regrettable that the counsel for the minor plaintiff made the statement at the bar that the deficient court-fee could not be made good and that the suit be dismissed without bearing in mind that he was representing not only the guardian in his personal capacity but also the interests of the minor. By getting the suit dismissed or the plaint rejected, he was not in any way protecting the interest of the minor. Even if the order rejecting the plaint could be challenged by way of appeal and even could be got set right through an application for review and these remedies were not availed of, the fact cannot be lost sight of that the order to the prejudice of the minor plaintiff had been passed under very peculiar circumstances and it was not expected of the minor to protect his interests in the best possible manner which may be otherwise available to him under various provisions of law. It was under extraordinary circumstances that the application was made by the minor through another guardian who could protect his interest. If in these extraordinary circumstances the trial Court exercised its inherent jurisdiction u/s 151 of the Code, protected the interests of the minor and restored the suit, no fault can be found with such an order. Rejection of the application would have resulted in gross injustice to the interests of the minor as well as in the abouse of the process of the Court.

Consequently, there is no merit in the revision petition and the same is dismissed in limine.