ATUL KRISHNA BANERJEE Vs. BHOWRILAL SERAOGI

JUDGEMENT

(1.) THIS is an application under S. 115, Civil P.C. on which a Rule was issued on the plaintiff opposite -party to show cause why the order dated 11 -8 -1951 of the Munsiff of Gauhati restoring Title Suit No. 3 of 1950 should not be set aside.

(2.) SUIT No. 3 of 1950 was filed by the Opposite Party Bhowrilal Seraogi in the Court of the Munsiff at Gauhati on 6 -1 -1950 valuing the relief at Rs. 845 -15 -0. Defendant 3 took an objection to the valuation and after an enquiry in course of which evidence was adduced by the parties, the learned Munsiff by his order dated 25 -1 -1951 held that the suit should be valued at Rs. 1,732 and the plaintiff was required to pay an additional court -fee of Rs. 72. On 31 -1 -1951, the plaintiff's lawyer filed a petition praying for time to file an amended plaint as well as the additional court -fee on which time was extended up to 8 -2 -1951. On 8 -2 -1951 the plaintiff defaulted in appearance and his pleader's prayer for further extension of time for putting in the requisites was rejected and the suit was dismissed for plaintiff's default. On 3 -3 -1951, the plaintiff applied for restoration of the suit under O. 9, R. 4, Civil P.C., and a miscellaneous proceeding i.e. Misc. case No. 58 of 1951 was started on the basis of that application. That proceeding was also struck off on 28 -4 -1951 due to want of steps by the plaintiff.

(3.) IT has been contended on behalf of the opposite party that the court -fees and the amended plaint having once been accepted by the learned Munsiff, it ought to be treated as sufficient compliance with the order of the learned Munsiff and the order dated 11 -8 -1951 restoring the suit on acceptance of these requisites should be treated as a valid order under S. 151, Civil P.C., and Mr. Sen relied on two of the reported cases Bachan Singh v. Dasrath Singh, : A.I.R. 1935 All. 985 and Munshi Ram v. Sun Life Assurance Co., Canada, : A.I.R. 1944 oudh 327. These two cases are, however, fairly distinguishable from the present case.