KASHMIRI DEVI Vs. AZIZ-U-DIN

JUDGEMENT

(1.) The facts giving rise to this revision under section 151 of the Code of Civil Procedure are that Aziz-u-Din filed a suit for possession by pre-emption of land in dispute. He was directed by the Court to deposit 1/5th of the pre-emption money amounting to Rs. 3400/- before 1st of August, 1977. On that date Shri M.R. Kapur, learned counsel for Aziz-u-Din, stated that the direction of the Court had not been complied with. Accordingly, the Court rejected the plaint. Aziz-u-Din then applied under section 151 of the Code of Civil Procedure for restoration of the suit on the ground that the above-said amount of Rs. 3400/- had in fact been deposited in the State Bank of India on 30th of July, 1977. As he was taken ill, he could not attend the Court on 1st August, 1977 nor could he inform his counsel of having deposited the amount in the State Bank of India. Upon consideration of the material placed before it, the trial Court was satisfied of the stand taken up by Aziz-u-Din, and the suit was restored by the impugned order.

(2.) The learned counsel for Smt. Kashmiri Devi the vendee has urged that the trial Court acted illegally and with material irregularity in invoking the inherent powers of the Court. He referred me to section 2(2) of the Code of Civil Procedure laying down that "decree" includes rejection of a plaint. Hence, against the order rejecting the plaint, appeal by virtue of the provisions of section 96 of the Code. Reliance was then placed on Nainsingh v. Koonwarjee and others, 1970 AIR(SC) 997, laying down :-

(3.) In view of the above, I find merit in the contention of the learned counsel for Kashmiri Devi. The petition is, accordingly, allowed and the impugned order is set aside. The parties are left to bear their own costs.