- (1.) THIS appeal was referred to a Bench by a learned Single Judge on 8-5-1951. The only point raised by learned counsel for the appellant is that the suit was not cognizable by the civil Court. The respondents here had filed Suit No. 20 of 1947 in the Court of the learned Civil Judge, azamgarh on 25-4-1947. It is admitted by learned counsel for the appellant that on the date when the suit was filed it was cognizable by the learned Civil Judge. On 3-6-1947, however, the plaint was rejected as the court-fees paid was insufficient. On 5-7-1947, the plaintiff applied for restoration and was granted time to pay the deficiency up to the 14th July. Again, on the 14th July the deficiency in court-fees not having been made good the plaint was rejected. On the 26th July, however, the previous order was set aside, the plaint was restored to its. original number, and on 28-7-1947 the deficiency was made good. On 15-6-1947, however, the U. P. Tenancy (Amendment) Act, 1947 had come into force and it is submitted by learned counsel that any suit of this nature became cognizable by the revenue Court.
(2.) THE point, therefore, that arises for decision is whether this suit should be deemed to have been instituted on 25-4-1947 when it was originally filed, or on 28-7-1947 when the deficiency was made good after the order restoring the plaint to its original number was passed on 26-7-1947.
(3.) OUR attention has been drawn to several decisions of this Court. In -- 'bachan Singh v. Dasrath singh', AIR, 1935 All 985 (A), a learned single Judge of this Court held that it was open to the court to treat the application for restoration as a fresh plaint and under Sections 149 and 151, civil P. C. , extend the time for payment of court-fee and treat the court-fee paid on the former plaint as part of the court-fee on the fresh plaint, and the court is not compelled to require the plaintiff to pay full court-fee on the fresh plaint. The point raised before the learned Judge was that the lower Court had no jurisdiction to entertain an application for restoration after a plaint had been rejected under Order 7, Rule 11 (c)and the proper remedy of the plaintiff was to apply for review of judgment. It may be mentioned that if a fresh plaint had been filed under Order 7, Rule 13 it would have been barred by limitation. Though the learned Judge has said that the application for restoration should be treated as a fresh plaint the fact that he held that Section 149 Civil P. C. , was applicable and the Court must be deemed to have extended the time for payment of court-fee goes to show that he treated the plaint as having been filed on the date when the plaint, which was deficiently stamped, had been filed.;