Ishwar Dayal and Another vs Hill Top Finance Co. (P.) Ltd.

M.C. Agarwal, J.—By this revision petition u/s 115 of the CPC the Defendants revisionist challenge an order dated 13th February, 1986 passed by the 1st Addl. Civil Judge, Muzaffarnagar, whereby he allowed an application u/s 151 of the CPC and setting aside the rejection of the plaint under Order VII, Rule 11 for non-payment of Court-fee restored the suit to its original number.

I have heard Sri. N.K. Srivastava, learned Counsel for the revisionists and Sri. M.K. Gupta, learned Counsel for the Respondent.

The Plaintiff-Respondent filed a petition, in the Court below on 1.1.1979 for leave to file a suit for recovery of Rs. 53,070.14 paise as indigent person. The said application was rejected on 5.9.1980. The Plaintiff was allowed 15 days'' time to make up the deficiency in the Court-fee. On 19.9.1980 the Plaintiff applied for two months'' time to file an appeal before the High Court and to bring a stay order. The Court granted one month''s time. On 17.10.1980 again on a similar request 15 days'' time was allowed. On 1.11.1980 again 15 days'' time was allowed. On 17.10.1980, 10 days'' time was allowed. On 27.11.1980 again a request was made for further time which was declined and the plaint was rejected under Order VII, Rule 11 for non-payment of Court-fee. Thereafter, on 1.1.1981 the Plaintiff moved an application for vacating the stay order dated 27.11.1980 in exercise of powers u/s 151 of the Code of Civil Procedure. It was alleged that on 27.11.1980 Shyam Sunder Lai the Plaintiffs Managing Director had come to the Court and, after the application for further extension of time was filed in the Court, he got ill-disposed and went away under the belief that the time will be allowed. The Plaintiff stated that it wanted to contest the suit and had in the meantime made arrangement for payment of Court-fee which would be paid as soon as the case is restored back. This application was allowed by the Court below by order dated 13.5.1982 relying upon a judgment of this Court in Firm Devesh Kumar Viresh Kumar, Aligarh and Others Vs. 5th Addl. District Judge, Aligarh and Others, . The Court below had held that an order under Order VII, Rule 11 of the CPC rejecting the plaint for non-payment of Court-fee can be vacated in exercise of powers u/s 151. The Court below granted a week''s time to the Plaintiff to make up the deficiency in the Court-fee and the record shows that within the time allowed the Plaintiff made up the deficiency.

The Defendants challenged the order dated 13.5.1982 by filing revision petition No. 467 of 1982 in this Court, that was allowed by order dated 26th October, 1983. This Court held that in view of the aforesaid judgment of this Court, the Court below did not commit any error of Jurisdiction in entertaining a petition u/s 151 for setting aside the order rejecting the plaint. It was contended before this Court that when the application u/s 151 was moved before the Court below the limitation for filing the suit for recovery of money had become barred by time and, therefore, the order rejecting the plaint could not be recalled. This point was not settled by the Court below. Therefore, by order dated 26th October, 1983 the matter was sent back to the trial Court for reconsideration of the question whether the order should be set aside on the footing that the claim of the Plaintiff was barred by limitation on the date when the application was made before it. It is after this order of remand that the Court below passed the impugned order dated 13th February, 1986 holding that inspite of the expiry of the period of limitation, the Court has jurisdiction to set aside the rejection of the plaint and allow the Plaintiff to make up the deficiency in the Court-fee.

The only point urged on behalf of the revisionists now was that on the date i.e., 1.1.1981 when a Plaintiff applied for setting aside the rejection of the plaint the suit had already become barred by time and, therefore, the Court in exercise of Jurisdiction u/s 151 could not revive a claim that had become barred by time.

It is not in dispute that if the suit was instituted on l.1.1981, the date on which the application u/s 151 was moved, it was barred by time. As a matter of fact the limitation for the suit, as stated in the plaint itself, had expired on 31.12.1978 which was a holiday and hence the suit was filed on 1.1.1978.

In support of his contention, learned Counsel for the revisionists relied upon Joy Deb Mukherjee Vs. William Jacks and Co. (India) Ltd., , in which it was held that where the plaint was rejected for non-payment of Court-fee, the Court should not exercise its inherent power and recall the order of rejection and thereby initiate a suit for enforcing a barred claim. With great respect, I beg to differ. The legal position has to be viewed reading Section 151 along with Section 149 which states as under:

Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

A perusal of the above provisions of law clearly indicates that the Court can allow the time at any stage of the proceedings and even without the aid of Section 148 can extend the time in its discretion. In other cases, namely, Nanick Mahato v. Ganga Kada Mahadeo 81 CWN 950 and Ganges River Transport v. Reliance Jute 86 CWN 443, a contrary view was taken and it was held that the Court can set aside the order rejecting the plaint even though the period of limitation for the filing of the suit had expired. In my view, therefore, an application u/s 151 for setting aside the rejection of a plaint under Order VII, Rule 11 of the CPC for non-payment of Court-fee cannot be rejected on the ground that on the date on which such application was moved, the suit had become barred by time. Such an application has to be decided on other consideration like conduct of the Plaintiff and the other circumstances of the case to arrive at a conclusion whether indulgence of the Court u/s 151 of the CPC would be justified. I may mention that by virtue of the earlier order passed by this Court, no such point was open for contest between the parties and the only question left for decision was whether the expiry of the period of limitation barred the Jurisdiction of the Court to act u/s 151. In my view, the expiry of the period of limitation does not debar a Court from exercising powers u/s 151 to set aside the rejection of a plaint under Order VII, Rule 11 of the Code of Civil Procedure.

For the above reasons, this revision petition has no force and is hereby dismissed with costs to the Respondent. It is to be observed that this suit has already remained pending for 18 years without any real progress. It is desired that the Court below shall proceed with the trial of the suit with all reasonable despatch and conclude the same expeditiously. The District Judge Muzaffarnagar should periodically monitor the progress of the suit.

The record of the Court below be returned forthwith and a copy of this order be separately sent to the District Judge, Muzaffarnagar for appropriate action.