Mohd. Yunus and another vs Sugra Begum and others

Srinivasachari, J.—This is a revision directed against the order of the District Judge, Secunderabad, dated 31-10-1953, by which the learned District Judge set aside an ex parte order made by his predecessor, restoring the suit of the plaintiff. The brief facts of the case are that the petitioner before us filed a suit for the recovery of a sum of Rs. 3,00,000/- from the defendant by paving a nominal court-fee of H. S. Rs. 20/- on 18-2-1953. The Court passed an order on the same day as follows:

Register as M. P. in Register No. 2. Put up in Court on 23-2-1953 for hearing on the objection raised by the Office.

It may be observed that the objection raised by the office amongst other things was that the court-fee paid was deficient by H. S. Rs. 3.242-7-0. On the date fixed for considering the objections of the office the District Judge was on leave and so the case was adjourned to the 13th of March. The plaintiff applied for adjournment and the Court granted him 10 days'' time to make up the deficit court-fee and also stated that if the court-fee were not paid within 10 days, the plaint shall be rejected. The case came on for hearing again on 24th March. The Court granted further time of one week. Again a fortnight''s time was granted on 1-4-1953.

When the case came on for hearing on 17th April the plaintiff prayed for a last chance for making good the deficiency till 27-4-1953 on condition that if court-fee were not paid before 27-4-1953 the plaint might be rejected. The Court, thereupon ordered that if court-fee were not paid by 27-4-1953, plaint would be rejected. On 27th April court-fee was not paid and the Court adjourned the case to the 8th of June for orders.

It was on the 8-6-1953 that the Court passed the following order:

The plaintiff and his Pleader not present. Court-fee not paid though time was given several times. The plaint is therefore rejected under O. 7, R. 11 (c) , C. P. C. for non-payment of the deficit court-fee, and the case closed.

On 8-7-1953, the plaintiff filed an application accompanied by an affidavit and paid the deficit court-fee. He prayed for restoration of the suit and his request was granted on 17-7-1953 on which day the Court restored the suit and directed that the defendant be summoned. After the defendant was served he took time for written statement and on 25-9-1953, raised a preliminary objection that the plaint having been rejected under O. 7, R. 11, C. P. C. it could not be restored. The case was posted for arguments and arguments were heard on 30-10-1953. On 31st October the District Judge passed the order now sought to be revised, setting aside the ''ex parte'' order of his predecessor of 17-7-1953 and allowing the plaintiff one month''s time to make an application for review stating that he would then consider whether the circumstances of the case justified reviewing the order passed on 17-7-1953. This Revision is against the above order.

It is argued by the learned Advocate for the petitioner that the learned Judge of the Court below could not have set aside an order passed by his predecessor. He further contended that if the defendant was aggrieved by the order of the Judge restoring the suit his remedy was to have come up by way of appeal or revision whichever course was open to him. It was also urged that originally the trial Judge had exercised his discretion under S. 151, C. P. C. and under such circumstances it was not open to his successor, to revoke the order.

It has to be observed at the outset that this order was made under the provisions of O. 7, R. 11, sub-r. (c) which empowers the Court to reject a plaint in certain circumstances and sub-rule (c) of the above rule says that where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to subscribe the requisite stamp paper within a time to be fixed by the Court, fails to do so, the plaint shall be rejected. The provision is a mandatory provision and the Court has no other option. A study of this rule along with S. 149, Civil P. C., is necessary.

Section 149, C. P. C. says that where the whole of the court-fee payable is not paid the Court may in its discretion at any stage of the suit allow the person to make up the court-fee. It envisages the Court granting time to make up the court-fee during the continuance of the action. Where, the Court extends the time and the court-fee is paid within the time prescribed by the Court, although the period of limitation might have expired, tile making up of the court-fee would relate back to the date when the suit is filed and the plaint would be treated as though it was instituted with the requisite court-fee.

Therefore, even where the plaint is filed on insufficient court-fee the law provides an opportunity to the plaintiff to apply for time for making up the deficit court-fee and the Court has the power under S. 149 to grant any time. In this case, it would appear such time was granted by the Court and on 8-6-1953 when he failed to pay in spite of repeated opportunities being given to him the Court proceeded to act under O. 7, R. 11 , C. P. C. The question now arises as to whether where the Court had rejected the plaint under O. 7, R. 11 it could restore it subsequently on cause being shown for not paying the court-fee within the time prescribed.

An order under O. 7, R. 11, it has to be remembered, comes within the definition of a decree within the meaning of S. 2(2) , Civil P. C. For S. 2(2) while defining what a decree is says that:

It shall be deemed to include the rejection of a plaint etc.

Therefore, where a Court has passed an order which amounts to a decree could it by a subsequent order vary the decree? In other words, could it exercise the inherent powers vested in it under S. 151, C. P. C. and revise, modify or alter the order passed under O. 7, R. 11?

It is open to a party aggrieved by a decree only to file an appeal or seek for a review if there were circumstances justifying the order being reviewed under O. 47, R. 1 . Where therefore, there is a specific provision under the Code prescribing a particular remedy the Court would not exercise its inherent powers under S. 151, C. P. C.

The learned Advocate for the petitioner relied upon a decision of the Patna High Court in the case of - Ramkhelawan Singh Vs. Monilal Sahu and Others, and argued that the Court had exercised powers under S. 151, C. P. C. under similar circumstances. In that case the Judges were of the opinion that an application to set aside an order dismissing an appeal for the non-filing of the appellant''s list could not be entertained under O. 47, R. 1 but under S. 151. On this analogy, it was urged that the lower Court also could have exercised its power under S. 151 in restoring the suit as it did on 17-7-1953. It has to be observed that this was a case where the appeal was dismissed for non-filing of the appellant''s list.

The dismissal of an appeal for not conforming to the order of the Court under O. 41, R. 11 does not amount to a decree as the rejection of a plaint under O. 7, R. 11, C. P. C. and therefore that case cannot help the petitioner. Further there are the observations of the learned Judges in that case that S. 151 should be applied with great caution and that in exercising its powers under that section the Court has to keep in view not only the interest or the applicant but also that of the other party who may be affected by this order. We endorse this view of the learned Judges and in this case at the time when the Court restored the suit the interests of the other party who would be affected by this order were not before the Court.

It may be taken now to be settled law that where court-fee is paid subsequent to the date fixed by the Court for making up the deficit court-fee the Court would treat it as a fresh plaint. Vid Bachan Singh Vs. Dasrath Singh, and the decision of the Oudh Chief Court in -- ''Munshi Ram v. Sun Life Assurance Co., Canada'', AIR 1944 Oudh 327 (C),

The learned Advocate for the petitioner relied upon -- Anant Prasad Singh Vs. Chunnu Tewari and Others, ) and contended that in identical circumstances it was held that a Judge had jurisdiction under S. 151, C. P. C. to restore a suit. We may straightway point out that the observations of the learned Judge referred to on behalf of the applicant were ''obiter dicta'' as he preferred to reject the revision application as in his opinion substantial justice had been done. He only gave in passing an expression to a feeling that the order restoring the suit passed by the Small Causes Judge was passed under S. 151, C. P. C.

Another case referred to is a decision of the Madras High Court in - Kolisetti Basavayya and Others Vs. Mittapalli Venkatappayya and Another, (E). In this case also the learned Judge held that it was open to the successor to treat the order as one open to review by him if proper and legal grounds were made out. This view does not militate against the rule that an order under O. 7, R. 11 is a decree which could be set aside, altered or modified only by a regular appeal.

As regards the argument that it was not open to Mr. Ghate to set aside the order of his predecessor we must point out that on the date when the earlier ''ex parte'' order was made the defendant had not come on the scene. Such an order is eventually a tentative order and always open to objection by the party likely to be aggrieved by it. We do not think that it could be contended with any force that an order of the kind with which we are concerned could not be set aside either by the same Judge or by his successor if circumstances warranted such a course. We are dearly of the opinion that the Court cannot exercise its powers under S. 151 if the result of it would amount to depriving the defendant of a valuable right that he had acquired viz., of contending that the suit was barred by limitation. We ''are supported in this view by the decision of the Patna High Court in - Rameshwardhari Singh and Another Vs. Sadhu Saran Singh and Another,

There is no case for interference with the order of the lower Court. We dismiss the application with costs.