Skip to content


Kaderbhai Peerbhai Vs. Husenabu Chandbhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 109 of 1960
Judge
Reported inAIR1962Guj59; (1962)0GLR71
ActsCode of Civil Procedure (CPC) , 1908 Sections 2 and 151 - Order 7, Rules 11 and 13 - Order 9, Rule 9
AppellantKaderbhai Peerbhai
RespondentHusenabu Chandbhai
Appellant Advocate B.G. Thakore, Adv.; for M.H. Chhatrapati, Adv.
Respondent Advocate C.K. Shah, Adv.
Cases ReferredMunshiram v. Sun Life Assurance Co.
Excerpt:
.....non-payment of court-fee - application made by plaintiff for setting aside order of dismissal of suit - trial court by its order restored suit - appeal against order - court acting under inherent jurisdiction and set aside order of dismissal - open to trial court to treat application as review application or fresh plaint under order 7 rule 13 - direction given to trial court to accept application to set aside order of dismissal of suit as fresh plaint under order 7 rule 13 and dispose of suit according to law. - - in the view, however which i have taken the defendant's application will fail but for different reasons. the opponent-plaintiff will, however, in the circumstances of this case pay the costs of the court below as well as of this court to the defendant-applicant the order..........consider what was the real nature of the order which the trial court passed while dismissing the suit. the trial court dismissed the suit substantially on the ground that the deficit court-fee was not paid up within the time allowed by the court. it is true that neither the plaintiff nor her advocate was present on that date but the reason for dismissing the suit was substantially not the absence of the plaintiff or her advocate hut the non-payment of the excess court-fee amount on that date, for it was not that the case was fixed for hearing on a particular day and the plaintiff or her advocate was absent on that day and for that reason the suit was dismissed. actually the hearing could not have proceeded further unless the excess court-fee amount was paid. therefore, the real reason.....
Judgment:
ORDER

R.B. Mehta, J.

1. The opponent-plaintiff filed a suit, being Suit No. 26/1957, in the Court of the Civil Judge, Junior Divison, Dhokla, for possession of certain immoveable property, for setting aside a sale-deed and for a declaration of the plaintiff's title to the suit property and for an injunction against the defendant Issues were framed. and the case was fixed for taking evidence on 4th September 1957, on which date the plaintiff gave an application for an amendment of the plaint. This amendment became necessary as in the plaint as originally filed, there was no prayer for possession. By the amendment the plaintiff added a prayer for possession. The plaint was arranged by reason of the order made by the Court allowing the application for amendment. For the payment or the additional court-fee stamps of Rs. 193-12-0 time was given to the plaintiff till 28th April 1958. On, the 28th April 1958, both the plaintiff and her Advocate were absent and the Court passed the following order:

'Plaintiff is not present when called out. Her pleader is also not present. The suit is fixed today for payment of necessary Court-fee Stamp by the plaintiff consequent to the amendment of the plaint. The necessary Court Fee Stamp is not paid. So, the suit will have to be dismissed for non-compliance. Hence the suit is dismissed for non-payment of Court-fee Stamps No order as to costs'.

On the 16th of June 1958, the plaintiff filed an application, accompanied by an affidavit of her pleader Mr. Mankiwala, requesting the Court to accept the excess court-fee stamps and set aside the order of dismissal of the suit. The ground on which this application was made was that the plaintiff was a woman end that she hoped to collect the amount required for the payment of the excess court-fee amount within the time allowed by the Court but as she did not succeed in collecting the said amount, she requested her lawyer Mr. Mankiwala, who is an Advocate practising at Ahmedabad, to apply to the Court for extension of time; that Mr. Mankiwala in his turn instructed a local Advocate one Mr. Ramanbhai to do the needful in the matter for making an application to the Court for extension of time. Mr. Mankiwala's letter to Ramanbhai apparently did not reach in time, with the result that Ramanbhai could not remain present in Court at the relevant time and the suit was dismissed by the learned trial Judge as stated above.

2. The plaintiff's case is that she came to know about this dismissal about 8 days efter the said dismissal. On the application of plaintiff for setting aside the dismissal of the suit, the learned trial Judge passed an order on tha 11th September 1958 to restore the plaintiff's suit and ordered the plaintiff to pay special costs amounting to Rs. 20/- to the defendant. The plaintiff was also directed to pay the requisite court-fee stamp within 15 days from the date of the said order. It appears that the requisite excess court-fee stamp was paid by the plaintiff within the time fixed by the trial Court. It is against this order of tha learned trial Judge restoring the suit on file that the present revision application is made .

3. It was contended by the learned Advocate for the defendant-applicant that the trial Court had no inherent jurisdiction to set aside the order of dismissal of the suit and it was said that the previous order of dismissal of the suit was in effect rejection of the plaint and it amounted to a decree and therefore after passing the said order of the dismissal oE the suit in these Circumstances the Court was functus officio. The second objection taken by the learned Advocate for the defendant-applicant was that the application to set aside the order of dismissal of the suit was made in any event beyond the period of limitation, viz., 30 days, if it was construed to be an order under Order IX, Rule 13 of the Code of Civil Procedure.

4. In this case, the order dismissing the suit was passed, on the 28th April 1958 and the application to restore the suit was made on the 16th June 1958 But it transpires that the Court vacation started on the 5th May and lasted till and inclusive of 15th June and the Court reopened on the 16th June. In these circumstances, if the Court had jurisdiction to set aside the order on an application made by the plaintiff, then there was obviously no bar of limitation. It would however be necessary to consider what was the real nature of the order which the trial Court passed while dismissing the suit. The trial Court dismissed the suit substantially on the ground that the deficit court-fee was not paid up within the time allowed by the Court. It is true that neither the plaintiff nor her Advocate was present on that date but the reason for dismissing the suit was substantially not the absence of the plaintiff or her Advocate hut the non-payment of the excess court-fee amount on that date, for it was not that the case was fixed for hearing on a particular day and the plaintiff or her Advocate was absent on that day and for that reason the suit was dismissed. Actually the hearing could not have proceeded further unless the excess court-fee amount was paid. Therefore, the real reason why the suit was dismissed was the non-payment of the excess court-fee amount. Now, that could only he done under Order VII, Rule 11, which provide as follows :

'The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the. relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so.'

5. Now, in this case on the amendment being allowed, the proper court-fee was not paid on the amended plaint and therefore the plaintiff was required to pay the proper court-fee stamp. Therefore, it would fall under clause (c) above. As the court-fee stamp was not paid within the time required by the Court, the Court we bound to reject the plaint under the provisions of the said Rule 11. Now, when the Court rejects a plaint, by Section 2 of the Civil Procedure Code it is provided that a decree shall be deemed to include the rejection of the plaint. Therefore, the Court's order in this case amounted to a decree. In these circumstances, after making the said order the Court was functus officio and the plaintiff's remedy was by way of an appeal or review. Of course, it was open to the plaintiff to present a fresh plaint in respect of the same cause of action as provided by Order VII, Rule 13 of the Code of Civil Procedure. In these circumstances, the Court's order dismissing the suit amounted to a rejection of the plaint. This was also theview taken by a Full Bench of the Allahabad High Court in the case of Muhammad Sadiq v. Muhammad Jan, ILR 11 All 91. As stated earlier, that once the Court dismissed the suit in the circumstances narrated above and once that order amounted to a decree, two courses were open to the plaintiff- She could have eithergone in appeal or review on proper grounds made out against the order of rejection of theplaint on the basis that it was a decree or she could have filed a fresh plaint on the same cause of action under the provisions of Order VII, Rule 13 as stated earlier. The plaintiff did not file an appeal but apparently she made an application to set aside the order of dismissal of the suit which dismissal was set aside by the Court acting under inherent jurisdiction Since the order of dismissal amounted to a decree and the Court was functus officio in this case it was open to the learned trial Judge to treat the application as a review application on proper grounds being made out or as a fresh plaint under Order VII, Rule 13 of the Civil Procedure Code, as the court-fee had been deposited, and to proceed with the suit according to law. It is true that the plaintiff did not say in so many words that her application may be treated as a plaint 'but there was nothing to prevent the Court from treating that application on this footing and doing substantial justice between the parties.

6. In the circumstances, In this case, to do substantial justice between the parties, I propose to adopt this course viz., that the application to set aside the order of dismissal of the suit should be treated as presentation of a fresh plaint and in doing so the Court is influenced to a great extent by the fact that this suit might otherwise become time-barred and work injustice to the plaintiff. Reference may be made in this connection to Munshiram v. Sun Life Assurance Co., Canada, ILR 20 Luck 268: (AIR 1944 Oudh 327). Accordingly I direct that the trial Court to accept the application to set aside the order of dismissal of the suit as a fresh plaint under Order VII, Rule 13 of the Code of Civil Procedure and dispose of the suit according to law. The trial Court will treat the Written Statement already filed by the defendant as a written statement in answer to the fresh plaint. The defendant will be at liberty to file a supplementary Written Statement, if he so desires. The trial Court will then proceed to dispose of the suit according to law. The trial Court set aside the order of the dismissal of the suit under its inherent jurisdiction apparently thinking that the dismissal order was analogous to an order of dismissal passed under Order IX, Rule 9 of the Code of Civil Procedure. But in this case this provision could not possibly apply as the suit was not set down for hearing on the relevant date as would be the position under Order 9, Rule 9 of the Code of Civil Procedure. In the circumstances, the trial Court's order of restoration under its inherent jurisdiction could not be sustained. In the view, however which I have taken the defendant's application will fail but for different reasons.

7. I modify the order of the trial Court as stated above. The opponent-plaintiff will, however, in the circumstances of this case pay the costs of the Court below as well as of this Court to the defendant-applicant The order of the trial Court about the special costs will stand.


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