Skip to content


Firm Devesh Kumar Viresh Kumar, Aligarh and ors. Vs. 5th Addl. District Judge, Aligarh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 6557 of 1979
Judge
Reported inAIR1981All15
ActsCode of Civil Procedure (CPC) , 1908 - Sections 148, 149 and 151 - Order 7, Rule 11
AppellantFirm Devesh Kumar Viresh Kumar, Aligarh and ors.
Respondent5th Addl. District Judge, Aligarh and ors.
Appellant AdvocateV.K. Gupta, Adv.
Respondent AdvocateK.N. Tripathi and ;B.N. Mishra, Advs.
DispositionPetition dismissed
Excerpt:
civil - remedies to plaintiff on rejection of plaint - sections 148, 149, 151 and order 7 rule11 of code of civil procedure, 1908 - due to insufficient court fee stamp plaint was rejected by trial court - application for recalling order was also rejected - validity of such order in question in writ petition - against such order appeal may be filed or courts discretion may be invoked as per circumstances - held, application under sections 148, 149, 151 maintainable. - .....which was allowed by the impugned order by the learned v additional district judge, aligarh. the learned district judge allowed the revision and set aside the order passed by the trial court rejecting the application of the plaintiff. while allowing the revision, the learned district judge has directed that the application in question be disposed of by the trial court on merits. 4. learned counsel for the petitioners contends that the view taken by the trial court that the only remedy available to the plaintiff was by way of appeal was correct and that the learned district judge has erred in taking a contrary view. 5. having heard the learned counsel for the parties, i am of the view that the learned district judge is right in holding that the application filed by the plaintiff was.....
Judgment:
ORDER

A.N. Varma, J.

1. By this writ petition, the validity of an order passed by the learned V Additional District Judge, Aligarh on 11-10-1976 is questioned.

2. The relevant facts are these,

3. A plaint was presented by respondent No. 2 in which the petitioners were arrayed as defendants. The plaint was rejected by the trial court on the ground of insufficiency of the court-fee stamp. The plaintiff thereupon filed an application for recalling of that order under Sections 148, 149 and 151 of the Code of Civil Procedure. The said application was rejected by the trial Court on the short ground that it wasnot maintainable and that the plaintiff had his remedy only by way of appeal against the order rejecting the plaint. Aggrieved by that order, the plaintiff filed a revision under Section 115 of the Code of Civil Procedure which was allowed by the impugned order by the learned V Additional District Judge, Aligarh. The learned District Judge allowed the revision and set aside the order passed by the trial Court rejecting the application of the plaintiff. While allowing the revision, the learned District Judge has directed that the application in question be disposed of by the trial Court on merits.

4. Learned counsel for the petitioners contends that the view taken by the trial Court that the only remedy available to the plaintiff was by way of appeal was correct and that the learned District Judge has erred in taking a contrary view.

5. Having heard the learned counsel for the parties, I am of the view that the learned District Judge is right in holding that the application filed by the plaintiff was maintainable. Against such an order, the aggrieved party has two alternatives depending on the circumstances of the case. He may file a regular appeal or may file an application under Sections 151, 148 and 149 of the Code of Civil Procedure, if the circumstances so permit. If circumstances for invoking the Court's discretion under Sections 148, 149 and 151 exist, the Court will certainly have jurisdiction to entertain the application irrespective of the consideration that the aggrieved party also has an alternative remedy by way of an appeal. The trial Court was, therefore, not right in taking the view that the application of the plaintiff was not maintainable.

6. There is no merit in this writ petition which is consequently dismissed. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //