(1) This revision petition has been filed under section 115 of the Code of Civil Procedure against the order of the Sub-Judge, dated 2nd March, 1973, by which he has refused the application of the petitioner for restoration of the suit, in which the plaint had been rejected for non-payment of the deficiency of the court-fees.
(2) The material facts of the case are that the petitioner before me, as a plaintiff, filed the suit giving rise to the revision on 10th June, 1970 for the relief of recovery of Rs. 7,750/ on the allegations, inter alia, that the petitioner was entitle to the payment of salary for the earned leave admissible to him. The court-fees paid on the plaint was only Rs. 735.60, while what was required to be paid was Rs. 906.40; thus there was a deficiency of Rs. 170.80. Time was prayed for making good the deficiency of court-fees and the court adjourned the case to 18th July, 1970 for the said purpose. It is significant to mention that no summons of the suit was ordered or issued for service on the defendants. On the morning of 18th July, the petitioner did not appear and the court rejected his plaint.
(3) The petitioner had purchased the deficient stamp duty worth Rs. 170.80 on 14th July, 1970, as is apparent from the endorsement on the stamp paper. He alleges to have given it to his counsel for filing in court, who failed to do so. He, however, presented it at 3.50 p.m. on the 18th July, 1970. This was accompanied by an application to the effect that the aforesaid date was fixed for completing the deficient court-fees and the stamp paper had been purchased on 14th July, 1970 and was being attached and there was some delay on the part of the petitioner to come to court and when he came he found that the suit had been dismissed. This application was accompanied by an affidavit which explains that the counsel could not come to court in the early hours as his son, a mental patient, became suddenly violent and the counsel was obliged to go home and return after lunch. Notice of the application was issued to the defendants and the same being opposed, has been dismissed by the court below by the impugned order. The court found that by order dated 11th June, 1970 the whole of the 18th July, 1970 had not been given to the plaintiff to make good the deficiency and the plaintiff was bound to make it good by the time the case was taken up for hearing, but the order stated that put up on 18th July, 1970 for making good the deficient court-fees and that the suit was taken up for hearing in the early hours of the day and in the absence of the plaintiff or the counsel for the plaintiff and not finding the deficit court-fees having been made good the plaint was rejected under Rule 11 of Order 7 of the Code of Civil Procedure. The application for restoration was dismissed on the ground that the order rejecting the plaint was appealable and as such the court had no jurisdiction or power to restore the suit.
(4) Mr. Maheshwar Dayal, counsel for the petitioner has assailed the legality and correctness of the said order. I have heard the counsel There is no appearance on behalf of the respondants, although the case commenced on 15th and has been carried over to 16th September, 1976. In Manohar Lal Chopra v. Rai Bahadur Raja Seth Hiralal, : AIR1962SC527 , the Court observed that inherent powers of the court exist in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and thereforee it must be held that the court is free to exercise them for the purposes mentioned in section 151 of the Code of Civil Procedure when the exercise of those powers does not in any way conflict with what has been expressly provided for in the Code or against the intention of the Legislature. The same rule of law has been reiterated by the Supreme Court in Arjun Singh v. Mohindra Kumar, : 5SCR946 .
(5) Section 148 of the Code of Civil Procedure provides that where any period is fixed or granted by the court for doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Section 149 provides that where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees 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. Both these provisions confer the power on the court to extend the time for payment of the deficit court-fees, even if the time initially fixed has expired. On 11th June, 1970 the court had adjourned the case to 18th July, 1970 for payment of deficit court-fees. The order of 18th July, 1970 records that nobody had appeared on behalf of the plaintiff and so the plaint was rejected. The order of the court does not expressly indicate that the plaint was being rejected for failure to pay the deficit court-fees. The application for restoration was moved by the petitioner on the same date befeore the end of the court hours. It was, thereforee, the duty of the court to consider the application of the petitioner on its merits and if it was satisfied with regard to the sufficiency of the cause as to why the petitioner was absent then the case was called out in the morning and why he had failed to complete the deficient court-fees, in my opinion, the court had the power and jurisdiction to set aside its previous order and it was not a proper answer to the application to hold that the order passed by the court was appealable.
(6) The mere fact of the appealability of the order does not oust the jurisdiction of the court to recall its order, which it feels it ought not to have passed. If an .appeal has, in fact, been preferred then perhaps different considerations may arise. To take an illustration, Order 9 Rule 13 provides that when a decree is passed ex parte against the defendant he has been given a right to apply to the court to set aside the decree on showing sufficient cause. Ex parte decree passed is also appealable under section 96. The mere fact that the decree is appealable does not debar the defendant from moving the court for setting aside the decree. In Mulla's Commentary on Order 9 Rule 13 Civil Procedure Code. (note 5). it is stated that the defendant against whom an ex parte decree is passed is at liberty to apply to set aside the decree under this rule, or to appeal from the decree, or to apply for a review of the judgment; he is entitled to apply under this rule to set aside the decree and at the same time to appeal from the decree; and further he is entitled to appeal from the decree without a previous application to set aside the decree under this rule. The question has engaged the attention of judicial authorities in cases under Order 9 Rule 13 and the decisions show that the two remedies are concurrent and unless and until the appeal has been decided, the first court will retain jurisdiction to set aside its decree. But, if an appeal has been finally decided, then the decree of the lower court is merged in that of the appellate court. The High Court of Lahore has gone to the extent of holding that even after an appeal from the decree has been dismissed, the trial court retains the jurisdiction to entertain an application to set aside an ex parte decree (see Sohan Singh v. Mool Singh. Air 1934 Lah 1016. It is not necessary for me to pursue the question raised in cases arising under Order 9 Rule 13. Suffice it to say that even when there is a right to appeal from the decree, it is open to the aggrieved party to apply to the court to set aside the ex parte decree on sufficient cause being shown and it can take the risk and is not bound to file an appeal. In the instant case, it is obvious that no appeal had been filed against the order rejecting the plaint. As such even the consideration, whether or not during the pendency or after the dismissal of the appeal the court will have jurisdiction to set aside the ex parte decree does not arise. Merely because the petitioner had a right to appeal against the order does not debar him from moving the application for restoration of the suit. The court below was bound to consider the application on merits and it had jurisdiction to decide the same.
(7) In Damodar Prasad v. Aditya Maharaj, : AIR1972Pat289 , the court observed that where the plaint was rejected for non-payment of court-fees, an application under section 151 of the Code of Civil Procedure was maintainable. In Balram Naik v. Krushna Kumari, : AIR1975Ori173 , the court approved the rule laid down in Damodar Prasad's case and observed that nothing short of express provision limiting such powers should be permitted to whittle down the scope and amplitude of the inherent powers envisaged under section 151 of the Code of Civil Procedure. There are a number of authorities to the effect that the power of restoration can be exercised under section 151 of the Code of Civil Procedure where no express provision exists for such restoration (see Kunjabehari Das v. Chanchala Das, : AIR1966Ori24 ).
(8) The court below, thereforee, erred in holding that it had no jurisdiction to set aside the order rejecting the plaint in exercise of inherent powers. I am also of the view that the court has acted with material irregularity in rejecting the plaint in the early part of the day when the petitioner had been granted time till 18th July, 1970 to pay the deficiency of court-fees, in particular when the petitioner appeared at 3.50 p.m. to satisfy the court that he had purchased the stamp duty three/four days earlier and it was on account of the illness of the son his advocate that the advocate could not appear in the early part of the day.
(9) In my opinion, the order of the court to the effect that it had no jurisdiction to restore the suit in the circumstances of the case is infirm and the court has fallen into an error in not exercising the jurisdiction vested in it. The order is, thereforee, not sustainable.
(10) As a result, the revision is allowed, the order of the court below is set aside and the court is directed to consider the application of the petitioner on its merits and determine whether there was sufficient cause for the petitioner to be not present in the court when the case was called out forbearing. If the court is satisfied, it would set aside its order rejecting the plaint and will allow the deficiency of the courtfees to be made good. On the other hand, if the court be not so satisfied it will have the power to dismiss the application of the petitioner for restoration of the suit. Costs of this revision will abide by the result of the suit.
(11) The petitioner appearing before me is directed to appear before the court below on 25th October, 1976. Since there is no appearance on behalf of the Union of India, notice may have to be sent to it.