1. This is a revision brought by two defendants against whom a Small Cause Court has passed a decree. The first point raised in revision is that the Court below had no jurisdiction to entertain an application for restoration after it had rejected a plaint on the ground that insufficient Court-fee had been paid, and that the Court haying rejected the plaint was functus officio, and that the proper remedy of the plaintiff was to apply for review of judgment, and further that the suit was barred by limitation. The facts are that the plaintiff brought a. suit on a promissory note dated 20th July 1929, and the plaintiff relied for saving limitation on an acknowledgment of 29th August 1931. The plaint was dated 3rd February 1934 and was valued at Rs. 751-8-0 with Court-fee stamp of Rs. 30. There was a deficiency of Rs. 47-8-0 and the plaintiff was allowed upto 13th March 1934. to make up the deficiency. He did not do so and the date was extended several times to 29th March, 9th April, 10th. April, 29th April and 11th May 1934. By that time the plaintiff had deposited in all over Rs. 60 and there was a. deficiency of Rs. 16. The Court rejected the plaint on the ground that the deficiency had not been made good. This order of rejection was passed under Order 7, Rule 11(c). It is provided by Rule 13, of Order 7 as follows:
The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint of the same cause of action.
2. Now, it is clear that under this rule a fresh plaint must be presented. It will be necessary for such a fresh plaint to be presented within the period of limitation otherwise the suit would fail on the ground of limitation. On 22nd May 1934, the plaintiff made an application to the Court. Now that date was within the period of three years from 29th August 1931, the date of the alleged acknowledgment, and therefore if the original plaint was within limitation the plaintiff would have been within limitation if he had filed a fresh plaint on 5th July 1934. Instead of filing a fresh plaint what he did was to pay into Court Rs. 16, deficiency of Court-fee on the former plaint and he asked the Court to count the Rs. 60 already paid as making up the full Court-fee and instead of filing a fresh plaint he asked that the suit should be restored. I do not think that so far as the plaintiff is concerned there is very much difference between asking that the suit should be restored on the former plaint and filing a fresh plaint. The question is whether on that date the Court had power to treat the Rs. 60 already paid as part of the Court-fee. No ruling has been shown on the subject. Under Section 149, Civil P.C., it is provided &s; follows:
Where the whole or any part of any lee prescribed for any document by the law for the time being in force relating to court-fee; has not been, paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.
3. It is argued that this section cannot I apply after the original plaint had been rejected under Order 7, Rule 11. The section says 'at any stage.' I think it is a fair inference under this section and under Section 151, that the Court had power to allow the Rs. 60 to count for the whole Court-fee and that the Court is not compelled to require the plaintiff to pay a full Court-fee on the fresh plaint. The Court however passed a very brief order. In the order sheet it was merely stated 'Deficiency of Court-fee made good. Suit to be restored.' and on the original plaint it was written 'Deficiency made good.' The grounds of revision are not in my opinion correct in alleging that the only course open to the Court was to treat the application as one for review of judgment. I think it was open to the Court to treat the application as a fresh plaint. Accordingly the mere defects in the order of the Court should not in my opinion prevent the plaintiff from having the benefit of Order 7, Rule 13, and the proceedings of 5th July 1934, may be treated as the filing of a fresh plaint in which the Court allowed the Court-fee of Rs. 60 already paid plus the Court-fees of Rs. 16 paid on that date to be treated as a whole Court-fee.
4. The next point which is urged by the defendants is that the liability of defendant 2 has not been established. The Court below has found as a finding of fact that defendant 2 had clearly admitted the promissory note and his liability. I do not consider that this finding of fact can be challenged in revision, but in any case learned Counsel admits that there is a compromise of the same elate as the promissory note, 29th August, in suit No. 395 of 1931, to which defendant 2 was a party and defendant signed that compromise and in that compromise it is stated that the defendants in that suit including defendant 2 are liable for the promissory note in question. If therefore a first appeal had lain from finding on this issue of fact, the finding would be against counsel, but I do not see how this finding can be raised in revision.
5. I therefore dismiss this application in revision with costs.