Manik Mahato and Another vs Gangapada Mahato

Salil Kumar Datta, J.—This Rule is directed against order No. 79 dated October 1, 1975 passed by the learned Subordinate Judge, Nadia rejecting the plaintiffs petitioners'' application u/s 151 of the Code of Civil Procedure. It appears that the plaintiffs instituted a suit in 1975 for declaration of title and for injunction. Declaration was valued at Rs. 8000/-and the plaintiffs paid a fixed court fees of Rs. 20/- for such declaration. The plaintiffs also prayed for injunction valuing it at Rs. 100/- and paid court fees of Rs. 8.15 p, in all Rs. 28.15 p. The defendants in their written statement took objection about valuation of the plaint made by the plaintiffs and a specific issue was framed in respect of valuation. The court found that the court fees paid by the plaintiffs was insufficient and directed them to pay advalorem court fees on the entire valuation of the suit and time was given for compliance by 27.8,75. On that date the plaintiffs filed an application for time to file deficit court fee. This application was not moved and the court accordingly rejected the petition on the same day. The Court further noted that no steps were taken and accordingly the plaint was rejected on contest by a subsequent order of the same date, that is, 27.8.75. There-after on 30.9.75 the plaintiffs filed an application u/s 151 stating that when the case was called on 27.8.75 they could not find out their lawyer and requested the bench clerk for calling the case again after an hour, but as the learned Advocate was not found on call, the learned Judge rejected the application for extension of time to file deficit court fees. This application u/s 151 was dismissed by the learned Judge on the view that an order rejecting the plaint is appealable and as it such it was not maintainable and could not be set aside by an application u/s 151. The plaintiffs, have moved against this order. Mr. Mitra, appearing for the petitioners, submitted that the court has always the inherent power to recall its own order made earlier in the suit viz., the order rejecting the application for time. In support he relied on the decision in the case of Sita Ram Sahu and Others Vs. Kedarnath Sahu, , in which it was held that a court has jurisdiction to recall an order which it has made earlier in the suit. It was observed that a court has always power to recall order which has the effect of perpetrating an injustice on a party. It was open to the court to reconsider its order refusing to grant further time to the plaintiff to make good the deficiency in court fees. The plaintiff in that case filed an application for grant of further time to put in the deficit court fees on the ground of plaintiff''s illness and the prayer was rejected on the assumption that the plaintiff''s illness was not genuine. The court held that it was open to the court to reconsider the position when material was placed before it which showed clearly that the plaintiffs case of his illness was substantially true. The court therefore first recalled its order refusing to grant time to make good the deficiency and once that order was withdrawn the order rejecting the plaint automatically fell through. This course of action was approved by the High Court on the ground that the court has always the inherent power to recall its earlier order passed in a suit.

Mr. Mahato appearing for the O.Ps. submitted that under the provisions of section 4 (2) of the West Bengal Court Fees Act, 1970 the court had no alternative but to reject the plaint after the expiry of the period fixed by it for payment of deficit court fee. Accordingly, the learned Judge was justified in holding that the application u/s 151 was not maintainable when the plaint was rejected in consequence.

The provisions of the Court Fees Act do not appear to create any impediment on court to consider the recall of an order passed earlier in the suit by such court, as there is and can be no prohibition, express or implied, to such action. It appears that the court has always jurisdiction to entertain and consider the application u/s 151 of the Code which is primarily directed for recall of the order passed earlier in the suit and in this case dismissing for default the application for time to pay deficit court fees.

In regard to the applicability of section 151 of the CPC in such case Mr. Mahato has drawn our attention to a decision in Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas, in which the court referred to an earlier decision in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , which laid down that inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. The above principle is well established but may apply as well to the facts of this case as alleged. Here plaintiffs petitioners wanted a reconsideration of the order dismissing for default the application for extension of time to deposit of deficit court fee. For relief against order of dismissal as aforesaid there is no procedure for appeal laid down in the Code. If the order dismissing the application for time is set aside, the order rejecting the plaint will also automatically fall.

We shall now consider the other contention raised by Mr. Mitra that notwithstanding the provisions for appeal against an order rejecting a plaint the instant application u/s 151 was maintainable in law. In Saratchandra Sen vs. Mrityunjoy Roy Chaudhury, reported in AIR 1935 Calcutta 336 a Division Bench of this Court observed that an order rejecting a plaint is appealable as a decree and when a suit was filled just at the time when the claim was going to be barred by limitation the court had no power u/s 151 to deprive a defendant of the right obtained by him by the operation of the law of limitation on account of the rejecting of the plaint when no appeal was preferred therefrom and to order the litigation to be revived. In this case the court''s decision was influenced by the fact that by operation of the law of limitation the plaintiffs lost his right to bring fresh suit on the same cause of action, when the order for rejecting the plaint was set aside by the Subordinate Judge u/s 151. The court was of opinion that by setting aside the order rejecting the plaint the court has revived the litigation which should not have been revived and had thereby deprived the defendants of his valuable right, obviously by the operation of the statute of limitation. The decision in this case appear to be confined to the facts of the case and does not appear to lay down a broad principle that an application u/s 151 in all circumstances is not maintainable in law. In a very recent decision in Smt. Bimla Devi Vs. Aghore Chandra Mallick and Others, a Full Bench of this Court has held that where an application under Order 21, Rule 90 is dismissed on the ground of default, it is open to the applicant to move the court, which passed the order of dismissal, u/s 151 to have the order of dismissal set aside. The court referred to a number of decisions and was of the opinion that the remedy by way of appeal though available is illusory because the Appellate court would have to go by the record and to determine whether the appellant was prevented by sufficient cause from appearing before the trial court. It is obvious that the Appellate Court would have no material on record to render a decision on the sufficiency of the cause and can give no relief to the appellant. The court in this case held that the application u/s 151 was maintainable for moving against an order dismissing an application under Order 21 Rule 90 even though such order was appealable under the provisions of Order 43 Rule 1 (j) of the Code. In the light of the above proposition, the application u/s 151 in the present case is maintainable in law, particularly when no appeal lies against an order dismissing for default an application for time to pay deficit court fees. For all these reasons we are of the opinion that the learned Judge was in error in holding by the impugned order that the instant application was not maintainable in law. We accordingly make the Rule absolute and set aside the impugned order and direct the learned Judge to consider and dispose of the application in accordance with law. There will be no order for costs.

G.N. Ray, J.

I agree.