SMT. USHARANI BHADRA & ORS. Vs. SMT. SUBHARANI BHAWAL & ORS.

JUDGEMENT

(1.) A suit was filed by the petitioners in which the prayer was to declare the decree obtained in Title Suit No. 44/76 as fraudulent and void. A point relating to payment of due court fee was raised and by an order passed on 14-3-83 it was held that proper court fees had not been paid. The plaintiffs were granted time till 12-8-83 for payment of deficit court fees. This date was extended upto 3-9-83 and thereafter upto 27-9-83 and finally to 10-11-83. The suit, however, came to be dismissed on 10-11-83 on which date it the plaintiffs were found absent and had also not taken any steps. Feeling aggrieved at the dismissal of the suit, a petition under Order 9, Rule 4, read with Sec. 151 of the Code of Civil Procedure was filed which came to be dismissed on 10-4-85. An appeal was preferred against this order, but that too was dismissed. Hence this revision.

(2.) A perusal of the impugned order shows that the aforesaid petition came to be dismissed because the order of 10-11-83 passed by the learned Trial Court was taken to be an order of rejection of the plaint under the provisions of Order 7, Rule 11(6) of the Code. Shri K. Sarma, learned Counsel appearing for the petitioners contends that this view is untenable inasmuch as had the plaint been rejected on the ground of non-payment of deficit court fee, the court would have given its reasons as required by Order 7, Rule 12 of the Code which has not been done. Learned Counsel further contends that against the order of the Trial Court for dismissal of the suit and not rejection of the plaint, the application filed by the petitioners under Order 9, Rule 4, read with Sec. 151 of the Code was maintainable. In this connection, I have been referred to a decision of Patna High Court in Damodar Vs. Aditya, AIR 1972 Patna 289, wherein it was, inter alia, held that in case of rejection of plaint for non-payment of court fee, the order is reviewable. This view was, however, taken because of the Patna Amendment of Order 7, Rule 12 by which review was specifically made maintainable where the words "or on account of non-payment, inspite of due diligence, of court fee within time allowed by the court "were added in sub rule (1) in the paragraph below Clause (c) after the words, "on the face of the record". Such a provisions is not to be found in Order 47, Rule 1 of the Code as it is applicable to this State.

(3.) Shri K. Sarma also relied on Balaram Vs. Krishna Kumari, AIR 1975 Orissa 178 wherein it was held that where a plaint is rejected under Order 7, Rule 11 for non-payment of court fee, and the cause for nonpayment is satisfactory, application for restoration of suit under Sec. 151 is tenable. With respect, I say that I have my doubts about the correctness of this view expressed by the learned Single Judge inasmuch as Sec. 2(2) of the Code has specifically held that rejection of the plaint shall be demed to be a "decree" and the express provision relating to appeal against the decree would militate against the view that in such a case also Sec. 151 could be invoked.