PRAKASH KRISHNA,J. - (1.) RAISING a short controversy, the present writ petition is at the instance of defendant of suit no. 619 of 2007.
(2.) IT appears that the plaint of the said suit was deficintly stamped in court fee. After granting several opportunities, the trial court by the order dated 20-2-2007 rejected the plaint being deficiently stamped. Thereafter, two applications dated 28-3-2009 to recall the said order and to condone the delay if any in filing the restoration application were filed. The condonation of delay was sought for on the ground that the applicant is heart patient and his wife is suffering with cancer. Due to paucity of funds, the court fee could not be paid. It was further stated that the applicant was confined to bed from 18-2-2007 to 8-3-2007. He contacted his counsel on 9-3-2007 and then he came to know that the suit has been dismissed for want of proper court fee on 20-2-2007. The trial court by its judgment and order dated 21-5-2007 condoned the delay and recalled the order dated 20-2-2007. Meaning thereby, the suit was restored to its original number and court fee was paid and suit was registered by the order dated 10-8-2007. Challenging the aforesaid two orders dated 21-5-2007 and 10-8-2007, the present writ petition has been filed. Heard the learned counsel for the paties and perused the record.
(3.) LEARNED counsel for the petititioner submits that only remedy available to the plaintiff respondent was to institute a fresh suit as provided for under Order 7 Rule 13 CPC. In contra, Sri P.K. Singhal, learned counsel appearing for the plaintiff submits that in such situation, as held by this Court, the petitioner has got two remedies. Reliance was placed on the following decisions.;