DAMODAR PRASAD Vs. ADITYA MAHARAJ

JUDGEMENT

(1.) THE plaint instituted by the plaintiffs-opposite party was rejected for non-payment of the court-fees- THEy filed a restoration application making out a sufficient cause for non-payment. This has been allowed by the court below.

(2.) MR. J.C. Sinha, learned counsel for the defendants, has submitted that in view of the decision of this Court, in Chamroo Thakur v. Basudeo Narayan, AIR 1968 Pat 48, an application under Order 9, Rule 4 or Section 151 of the Code of Civil Procedure, hereinafter called the Code, for restoration of the suit was not maintainable. I am unable to accept this contention for two reasons; firstly, there is a fresh Bench decision of this Court to the contrary vide M. I. C. No. 1039 of 1964 (Hira Lal Singh v. Jalim Singh) decided on 14-5-1965 (Pat) and, secondly, even assuming that the application labelled under Order 9, Rule 4 or Section 151 of the Code was not maintainable, undoubtedly an application for review in view of the Patna Amendment of Rule 1 of Order 47 was maintainable. The only difference would be that on such an application half the amount of court-fee was payable; and, if supposing the application has been allowed by the court without payment of proper court-fees, the defendants cannot be allowed to make a grievance of this matter in this Court. In substance, the order will be deemed to be an order under Order 47, Rule 1 of the Code as it" stands under the Patna Amendment. For both these reasons, I hold that this civil revision application must fail. It is, accordingly, dismissed but without costs.