Harbans Lal, J. - (1.) A suit for pre -emption was filed by Sukhbir Singh, minor, respondent, through his next friend Jaswant Singh. On scrutiny, it was found that there was deficiency in the Court fee on the plaint as filed, to the tune of Rs. 1,470. By order of the trial Court, this deficiency was allowed to be made good by July 25, 1977. On this date Shri Ranbir Singh, counsel for the minor plaintiff made his statement that the deficiency in the Court fee could not be made good and the suit may be dismissed. The trial Court consequently rejected the plaint on July 25, 1977. On August 24, 1977, that miner plaintiff through another next friend, Shamsher Singh, his maternal uncle, filed a petition under section 151 Code or Civil Procedure, (hereinafter called the Code), praying that the previous guardian of the minor plaintiff had not protected the interests of the minor and did not make good the deficiency in Court fee and as such, the suit may be restored and the deficiency in the Court fee may be allowed to be paid. Another suit for preemption had been filed by the present petitioners. They contested the application filed on behalf of the minor on the ground that the order rejecting the plaint in the suit filed on his behalf could be challenged in appeal which remedy was not availed of, nor was any application for review of the order made, and, therefore, the suit could not be restored under section 151 of the Code. The trial Court, however, allowed the application of the minor and ordered restoration of the suit. Permission was also granted to pay the deficient Court fee. This order has been challenged in the present revision petition.
(2.) ACCORDING to the learned counsel for the petitioners, the provisions of section 151 of the Code could not be availed of, nor could any order be passed by the trial Court in the exercise of its inherent jurisdiction under the said provision when a specific remedy by way of appeal and review are provided under the Code. Reliance has been placed on Saratchandra Sen v. Mrityunjay Ray Chaudhuri : A.I.R. 1935 Cal. 336 (2), Radhanath Jha v. Bachha Lal Jha and others : AIR 1955 Pat 370, Ramautar Tiwari and others v. Jagdish Singh and others : A.I.R. 1957 Pat. 430, Mohd. Yunus and another v. Sugra Begum and others, AIR 1955 Hyd 156, and Hubraj Singh and others v. Mst. Rama Desi Kuer and another : A.I.R. 1954 All. 719, relied upon by the trial Court in support of its decision has also been distinguished. In Saratchandra Sen's case it was held that where a suit was filed at the time when the claim was about to be barred by limitation and the plaint is rejected by the Court, the plaintiff is entitled to get the order of rejection set aside in appeal and the Court has no jurisdiction to set aside the same under section 151 of the Code.
(3.) IN Radhanath Jha's case (supra) a Full Bench of the Patna High Court held that in case, appeal preferred in the High Court was dismissed for default of payment of requisite Court fee, the proper remedy was by way of an application for review under Order XLVII rule 1 of the Code and application under section 151 of the Code was not maintainable. However, the application filed by appellant under section 151 of the Code was treated as an application for review and the same was allowed and the deficiency in the Court fee was allowed to be made good.;