- (1.) M. C. Agarwal, J. By this revision petition under Section 115 of the Code of Civil Procedure the defendants revisionist challenge an order dated 13th February, 1986 passed by the 1st Addl. Civil Judge, Muzaffar nagar, whereby he allowed an application under Section 151 of the Code of Civil Pro cedure and setting aside the rejection of the plaint under Order VII, Rule 11 for non payment of court fee restored the suit to its original number.
(2.) I have heard Sri N. K Srivastava, learned counsel for the revisionists and Sri M. K. Gupta, learned counsel for the respondent. The plaintiff-respondent filed a peti tion, in the court below on 1. 1. 1979 for leave to file a suit for recovery of Rs. 53070. 14 paise as indigent person. The said applica tion was rejected on 5. 9. 1980. The plaintiff was allowed 15 days, time to make up the deficiency in the Court fee. On 19. 9. 1980 the plaintiff applied for two months' time to file an appeal before the High Court and to bring a stay order. The Court granted one month's time. On 17. 10. 1980 again on a similar request 15 days time was allowed. On 1. 11. 1980 again 15 days time was al lowed. On 17. 10. 1980 10 days time was al lowed. On 27. 11. 1980 again a request was made for further time which was declined and the plaint was rejected under Order VII, Rule 11 for non-payment of Court fee. Thereafter on 1. 1. 1981 the plaintiff moved an application for vacating the stay order dated 27. 11. 1980 in exercise of powers under Section 151 of the Code of Civil Pro cedure. It was alleged that on 27. 11. 1980 Shyam Sunder Lal the plaintiffs Managing Director had come to the Court and, after the application for further extension of time was filed in the Court, he got ill-disposed and went away under the belief that the time will be allowed. The plaintiff stated that it wanted to contest the suit and had in the meantime made arrangement for payment of Court fee which would be paid as soon as the case is restored back. This application was allowed by the Court below by order dated 13. 5. 1982 relying upon a judgment of this Court in M/s Devesh Kumar Viresh Kumar v. Vth Addl. District Judge, A. I. R. 1981 Allahabad 15. The Court below had held that an order under Order VII, Rule 11 of the Code of Civil Procedure rejecting the plaint for non-payment of court fee can be vacated in exercise of powers under Section 151. The Court below granted a week's time to the plaintiff to make up the deficiency in the Court fee and the record shows that within the time allowed the plaintiff made up the deficiency. The defendants challenged the order dated 13. 5. 1982 by filing revision petition No. 467 of 1982 in this Court, that was allowed by order dated 26th October, 1983. This court held that in view of the aforesaid judgment of this Court the Court below did not commit any error of jurisdiction in entertaining a petition under Section 151 for setting aside the order rejecting the plaint. It was contended before this Court that when the application under Section 151 was moved before the Court below the limitation for filing the suit for recovery of money had become barred by time and, therefore, the order rejecting the plaint could not be recalled. This point was not settled by the Court below. Therefore, by order dated 26th October, 1983 the matter was sent back to the trial Court for recon sideration of the question whether the order should be set aside on the footing that the claim of the plaintiff was barred by limita tion on the date when the application was made before it. It is after this order of remand that the Court below passed the impugned order dated 13th February, 1986 holding that inspite of the expiry of the period of limitation the Court has jurisdic tion to set aside the rejection of the plaint and allow the plaintiff to make up the deficiency in the Court fee.
(3.) THE only point urged on behalf of the revisionists now was that on the date i. e. 1. 1. 1981 when a plaintiff applied for setting aside the rejection of the plaint the suit had already become barred by time and, there fore, the Court in exercise of jurisdiction under Section 151 could not revive a claim that had become barred by time. It is not in dispute that if the suit was instituted on 1. 1. 1981, the date on which the application under Section 151 was moved, it was barred by time. As a matter of fact the limitation for the suit, as stated in the plaint itself, had expired on 31. 12. 1978 which was a holiday and hence the suit was filed on 1. 1. 1979.;