Sita Ram vs Data Ram and others

D.K. Mahajan, J.—This is an application for revision by one, Sita Ram, and is directed against the order of the Subordinate Judge 1st Class, Panipat, dated the 15th of April, 1966, whereby his application for restoration of the suit, that was dismissed for default, was rejected.

The learned Judge rejected the application on the ground that, in his opinion, the order dismissing the suit for default amounted to rejection of plaint under Order 7, rule 11 of the Civil Procedure Code. That order was passed because the deficiency of Court fee was not made good. This decision of the learned Judge cannot be sustained for the reason that the order, his predecessor passed, was an order dismissing the suit for default. It the order had been passed under Order 7, rule 11, Civil Procedure Code, the learned Judge would have rejected the plaint; and in that event, the petitioner could have filed an appeal because the rejection of a plaint amounts to a decree. The petitioner has been greatly prejudiced by the order passed by the Subordinate Judge on the loth of August, 1966, whereby instead of rejecting the plaint under order 7, rule 11, the suit was dismissed This led the petitioner to make an application for setting aside the order of dismissal for default and that order has not been set aside on the ground that the order virtually amounts to an order under Order 7, rule 11. It is fundamental that no party can be made to suffer by a wrong order of the Court and this is what has, in fact, happened in this case.

in the interest of justice, I vacate the order of the Subordinate Judge dated the 16th of August, 1966, dismissing the suit for default. All proceedings subsequent thereto would be rendered futile. Therefore, it is not necessary to pronounce upon the validity of the order of the Subordinate Judge refusing to allow the petitioner''s application for setting aside the order of dismissal for default. I only mention, that, an assumption was made in passing that order that the same was under Order 7, rule 11 of the Code of Civil Procedure, which, in fact, it is not, though the proper order, that should have been passed, was one under Order 7, rule 11. It is necessary in the case of illiterate litigants that orders are made under the proper provisions and are properly expressed. As already said, in order to do complete justice between the parties, I hereby set aside the order of the Subordinate Judge dated the 16th of August, 1966, and direct him to proceed from that stage. The petitioner wil1 be granted an opportunity to make good the deficiency of Court-fee. If he fails to make good the deficiency within the time allowed, the plaint should be rejected under Order 7, rule 11. As a consequence of this the impugned order will go overboard.

The respondent is absent. He is represented by a counsel. His counsel did not also appear at the hearing. A notice of actual date was sent to the counsel and the case has been on the board for a considerably long time.

The petition is accordingly allowed and the impugned order as well as the order dated the 16th of August, 1966, are set aside. There will be no order as to costs. I he petitioner is directed to appear before the Subordinate Judge 1st Class on the 3rd of June, 1968, when a notice should issue to the respondent. The Subordinate Judge should proceed to decide this case expeditiously and in accordance with law.