- (1.) THIS is an application for reve-sion by the defendant Johri for revising the order of the learned Munsif, Kotputli dated the 10th of September, 1952. The opposite party filed a suit, but the plaint was not sufficiently stamped. The suit was filed on the 27th of August, 1952. The plaintiff was given time to file the deficiency in the court fee upto the 4th of September, 1952, but the deficiency was not made good upto the said date. The plaint was, therefore, rejected.
(2.) THE plaintiff made an application dated the 10th of September, 1952, stating that the had gone to Narnoi on account of some important business and therefore, he could not file the court fee in time. This application was made under sec. 151of the Civil Procedure Court and was supported by an affidavit. THE learned Munsif was of the view that three remedies were available to the plaintiff: - (1) by way of an appeal - (2) the other by way of an application for revision; (3) and the third by way of an application for restoration. He thought it proper to exercise his inherent powers and set aside the order of rejection of the plaint under sec. 151 of the Civil Procedure Code. It is against this order that the defendant has come in revision to this Court. I have heard Mr. B. P. Agarwal on behalf of the applicant and Mr. G. S. Sharma on behalf of the opposite party. It has been argued by Mr. Agarwal that the only remedy to the plaintiff was by way of an appeal or by way of an application for review and the lower court was not justified in applying sec. 151 of the Civil Procedure Code to the facts of the present case. He relied upon a ruling of Calcutta High Court in the case of Saratchandra Sen vs. Mrithunjay Ray Chaudhari (1) wherein it was held that - "where, in a suit filed just at the time when the claim is about to be barred by limitation, the court orders rejection of the plaint and the plaintiff faila to vacate the order rejecting the plaint, within the time prescribed by law, by an appeal against that order, the Court has no jurisdiction to set aside the order under sec. 141 and thereby to deprive the defendant of a valuable right which he has already acquired by virtue of the law of limitation. It was further held that if the court sets aside the order and revives the limitation, the High Court can interfere in revision. " On behalf of the opposite party. reliance has been placed upon the ruling of Allahabad High Court in the case of Anant Prasad Singh vs. Chunnu Tewari (2 ). In that case the plaintiff filed a in the court of the Small Causes on an insufficiently stamped plaint and failed to make good the deficiency by the date fixed. The court rejected the plaint but on an application restored the suit and thereafter decreed the claim. In his application for revision, the defendant took one of the grounds that the lower court's decree could not be sustained because the suit had been wrongly restored. It was held that - "the court had jurisdiction to restore the suit. Once it had been found that a liability existed and decree had been passed to enforce the same it would not be proper for the High Court to interfere on a technical ground. " The Allahabad High Court had taken the same view in an earlier case of Bachan Singh vs. Dasrath Singh (3 ). In that case too, the suit was filed in the court of Small Causes and the plaintiff having failed to make the deficiency in court fee good by the date fixed, the plaint was rejected. Thereafter, on an application by the plaintiff, the order rejecting the plaint was set aside and a decree was passed against the defendant. In that case when the application for restoration was made, the suit was not barred by limitation and it was held that: - "the court could treated such restoration application as a fresh plaint under O. 7, R. 13 and it can allow the old court fee paid on the rejected plaint to be computed towards court fee on the fresh plaint, under sec. 149 and under its inherent powers derived under sec. 151 of the Civil Procedure Code. " The facts of the two Allahabad cases are quite different from the facts of the present case. In those cases, the order of setting aside the order of rejection of the plaint was challenged after the decree had been passed and in view of the special provisions of sec 25 of the Small Causes Courts Act. The learned Judges who decided the aforesaid two cases felt reluctant to set aside the decree of the lower court. In the present case no decree has yet been passed and the applicant has not come to this Court in revision under sec. 25 of the Provincial Small Causes Courts Act which lays down that the High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit. In the present ease, the applicant has come in revision under sec. 115 of the Civil Procedure Code and I find that the lower court acted illegally in the exercise of its jurisdiction as it had no power to apply sec. 151 in the face of a specific remedy by way of an appeal provided in law against the order of rejection of the plaint. I fully agree with the Calcutta High Court that in the case like the present sec. 51 of the Civil Procedure Code cannot be applied. I am, therefore, unable to support the order of the lower court. The application for revision is allowed, the order of the lower court dated the 10th of September, 1952, is set aside and the order dated the 5th of September, 1952, rejecting the plaint is restored. In the peculiar circumstances of the case. I order the parties to bear their own costs of this revision. . ;