- (1.) The facts leading to the issue of this Rule briefly are as follows: The Plaintiff instituted a suit for a declaration of title and confirmation of possession with respect to a jalkar and he put a certain valuation on his suit. The Defendants objected that the valuation was too small. The court agreed with that view and ordered that there should be an investigation as to the correct value of the subject-matter of the suit and directed that a commissioner should be appointed for local investigation. The court further directed that the commissioner's fees should be deposited by the Plaintiff within a certain time. The fees were not deposited by the Plaintiff within a certain time. The fees were not deposited, although several opportunities were given to the Plaintiff to deposit the same. The last date for depositing the fees was May 24, 1948, but the Plaintiff took no steps and the order passed by the learned Munsif was that the suit was dismissed. Thereafter, an application was filed praying that the order of dismissal be set aside on certain grounds. It was alleged inter alia that, on the date fixed for depositing the commissioner's fees, the tadbirkar of the Plaintiff was ill and therefore, it was not possible for him to take any steps. The application for setting aside the order of dismissal purported to be one under Order IX, Rule 9 of the Code of Civil Procedure. The learned judge who heard the application held that Order IX, Rule 9 of the code had no application, inasmuch as the order of dismissal was not passed on the ground of default of appearance by the Plaintiff. From the order passed by the learned Judge, it appears that the pleader for the Applicant asked the learned judge to invoke the residuary powers, which were preserved to the court by Section 151 of the Code of Civil Procedure and contended that the court should exercise those residuary powers in favour of the Applicant. The learned judge, however, held that the order of dismissal was an appealable order and that consequently there was no scope for exercising any inherent jurisdiction, as the code provided a specific remedy. On these findings, he dismissed the application. Against this order the present rule has been obtained.
(2.) We entirely agree with the learned judge that Order IX, Rule 9 of the code has no application whatsoever in the present case. The suit has been dismissed, not on account of any default of appearance by the Plaintiff. The court has exercised the powers given to it by Section 8D(2) of the Court-fees Act. Section 8D(2) is in the following terms: The court may, from time to time, direct such party to the suit, as it thinks; fit, to deposit such sum as the court thinks reasonable as the costs of the inquiry and if the costs are not deposited within such time as the court shall fix, may, notwithstanding anything contained in any other Act, dismiss the suit, if such party is the Plaintiff or the Appellant and in any other case, may recover the costs as a public demand.
(3.) Section 8D(1) refers to the issue of a commission for making a local investigation in connection with valuation. The order passed by the learned Munsif was, therefore, clearly an order which he could have passed under Section 8D(2) of the Court-fees Act.;