KASTHURI VARADHANAMMA Vs. THANAMALA MUNISWAMI REDDI

JUDGEMENT

(1.) This second appeal raises a short point which has been previously considered in Surendra Prasad V/s. Attabuddin 26 C.W.N. 391 where Newbould, J. held that an order passed at a stage of the suit before the plaint is registered, can be reviewed without notice to the other party. There is no other case exactly in point, but there are several cases where the question has been considered whether a decree or order can be reviewed after the claim has been registered, for example in Second appeal and on the question so arising there has been a conflict between Janaki Nath Hore V/s. Prabhasini Dasee (1915) I.L.R. 43 Cal. 178 on the one hand and Abdul Hakim Chowdhury V/s. Hem Chandra Das (1914) I.L.R. 42 Cal. 433 Surajpal Pandey V/s. Utim Pandey (1921) 6 Pat. L.J. 625 and Narayana Chettiar V/s. Muthu Chettiar on the other. In my opinion it is not necessary to consider this conflict because in the view I take it is not necessary to consider whether or not an order rejecting a plaint can be reviewed without notice, for following the Privy Council decision in Krishnasami Panikondar V/s. Ramasami Chetty (1917) 34 M.L.J. 63 : 45 I.A. 25 : I.L.R. 41 Mad. 412 (P.C.) I am clearly of the opinion that where a plain has been rejected, as here, after ample time has been given not merely for the finding of the requisite fee but for putting Counsel in possession of all the relevant facts which he could urge as an excuse for the delay, then, even assuming that an order rejecting a plaint (which under Section 2 of the Code is a decree) can be reviewed without notice as to which I say nothing, it would be necessary to give the other side an opportunity at the earliest possible moment of contesting the propriety of the review. The defendant to this suit took the earliest opportunity to raise the point in his written statement and argued it and the appellate Court held that the plaint ought not to have been restored to file. It is true that the Court based its decision upon the view that in the absence of notice a review cannot be given. But when one considers the grounds upon which under Order 47, Rule 1 Civil Procedure Code a review can be had and when one considers the facts of this case, and bears in mind that the plaint was filed on the last day of limitation with a merely nominal court-fee of four annas thereon, that on the 21 June 1927 the deficit of Rs. 127-3-0 was ordered to be paid 10 days time being given, a further 10 days on the 2nd July, 1927 and again another 10 days on the 15 July 1927 and that the plaint was rejected only on the 25 July, it is in my opinion clear that the Court could not have reviewed its order rejecting the plaint, which order is a decree and could not have so reviewed it quite apart from any question of notice. In arriving at this conclusion I have borne in mind the reasons now stated for the failure to produce the court- fee in time. None of these facts are facts which could not; have been placed before the Court at the time when the plaint was rejected. They do not constitute new matters since discovered. There is no question of mistake or error apparent on the record.

(2.) It appears to me to follow therefore that assuming (without deciding) that the order rejecting a plaint could without notice have been reviewed, still when the Court came to consider whether it would review and could review tinder the powers conferred by Order 47, Rule 1, it would have had to answer the question in the negative and the result would be that the order would not have been reviewed and consequently the rejection of the plaint would stand, from which it follows that the suit ceased to be in existence on the 25 July 1927 and the decision of the learned Subordinate Judge of Nellore dismissing the suit is correct. The Second Appeal is accordingly dismissed with costs. Pandrang Row, J.

(3.) I concur.