Umman vs Abraham and Others

Raman Nayar, J.—I think that the application brought by the plaintiff-petitioner for restoring his rejected plaint has been rightly dismissed by the court below. The plaint was filed on 6-3-1956 with what I might call the contemptible court fee of four annas against the fee of Rs. 135/- really due. On 28-3-1956, the plaintiff applied for time to pay the court fee and he was given time till 18-5-1956. On 18-5-1956 the plaintiff neither paid the fee nor asked for time, and the court rejected the plaint under Order VI, rule 11(c) of the Code. Nearly a month later, on 16-6-1956, the plaintiff filed the present application with which he brought the deficit court fee. All that he alleged in support of the application was that he had been unwell and therefore unable to find the necessary money earlier, and he cited no provision of law, perhaps wisely, for that might only have been a curb on the resourcefulness of his Learned Counsel, From the facts stated, it is apparent that the plaintiff had no valid excuse for his default and that even if an application like the present were maintainable, under some provision or other of the law it would have to fail on the merits. Nevertheless, I shall briefly consider the various provisions that have been mentioned. They are Order IX, rule 9, Order VII, rule 13, Order XLVII, rule 1 and sections 148 and 149 and, of course, 151 of the Code. Order IX, rule 9 can obviously have no application to a case of rejection; and so far as sections 148, 149 and 151 are concerned, I am inclined with great respect to follow the view taken in Radhanath Jha v. Bacha Lal Jha and others (A.I.R. 1955 Patna 370 Full Bench) and in Mahanth Ram Das Chela Vs. Ganga Das, that these sections have no application, the first two, because there was no proceeding pending, and the third, because apart from the prohibition in Order XX, rule 3, the Code provides for a remedy in such cases, by way of appeal (since the rejection of the plaint is a decree as defined in section 2 (2)), as also by way of review. The application brought by the plaintiff cannot be treated as an application for review since the requisite court fee was not paid on it, and as for treating the application as a fresh plaint brought under Order VII, rule 13, it is to be remarked that the suit had become barred even before the rejection of the plaint. Even if, as suggested by Varadaraja Iengar J. in Gopalakrishna Pillai v. Narayanan (1958 KLT 562) by a happy synthesis we mitigate the rigour of Patna by a dose of the liberality of Allahabad in Bachan Singh Vs. Dasrath Singh, and other cases, and hold that both section 149 and section 151 may be applied subject however to the caution by Calcutta and Hyderabad in Saratchandra Sen v. Mrityunjay Ray Chaudhuri (A.I.R. 1935 Cal 336 (2)) and Mohamud Yunus and another v. Sugra Begum and others (A.I.R. 1955 Hyd 156), that, the jurisdiction under sections 149 and 151 should not be so exercised as to deprive a defendant of the right obtained by him by virtue of the law of limitation, that would not help the plaintiff in this case since, by the time he brought his restoration application, his claim had become barred by time.

I dismiss the petition with costs.