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Saratchandra Sen Vs. Mrityunjay Ray Chaudhuri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal336
AppellantSaratchandra Sen
RespondentMrityunjay Ray Chaudhuri
Cases ReferredM.V. Sundaresa Ayyar v. P. Subba Rao
Excerpt:
- .....the rejection of the plaint, the plaintiffs filed an application on 18th july 1933 before the learned subordinate judge, purporting to be under section 151, civil p.c., for revival of the plaint which was rejected on 4th august 1932, after reducing the claim to rs. 6,000 from rs. 10,000 and also for leave to file the deficit court-fee on that reduced valuation. the learned subordinate judge, without any notice to the petitioner, allowed the plaintiffs' prayer. the plaintiffs having again defaulted in filing the court-fee within the time fixed by the court, further time was granted till 11th august 1933, on which date the plaintiff paid the court-fee and thereupon the plaint was registered. thereafter, the petitioner, having come to know about the previous proceedings, after service.....
Judgment:
ORDER

1. This rule is directed against the orders of the Subordinate Judge of Rangpur, dated 1st August 1933, 8th August 1933, 11th August 1933 and also 23rd April 1934. It appears that the plaintiffs, opposite party, instituted a suit against the petitioner in the Court of the Subordinate Judge of Rangpur on 13th July 1932, for recovery of Rs. 10,000 on the allegation that the cause of action for the suit arose on 13th July 1929. The plaint was filed on payment of a court-fee stamp of annas two only, though the requisite court-fee payable was Rs. 750. The Court, thereupon, granted extension of time for filing the deficit court-fee. Ultimately the plaintiff having failed to put in the deficit court-fee, the plaint was rejected on 4th August 1932. About a year after the rejection of the plaint, the plaintiffs filed an application on 18th July 1933 before the learned Subordinate Judge, purporting to be under Section 151, Civil P.C., for revival of the plaint which was rejected on 4th August 1932, after reducing the claim to Rs. 6,000 from Rs. 10,000 and also for leave to file the deficit court-fee on that reduced valuation. The learned Subordinate Judge, without any notice to the petitioner, allowed the plaintiffs' prayer. The plaintiffs having again defaulted in filing the court-fee within the time fixed by the Court, further time was granted till 11th August 1933, on which date the plaintiff paid the court-fee and thereupon the plaint was registered. Thereafter, the petitioner, having come to know about the previous proceedings, after service of summons in the suit upon him, made an application before the learned Subordinate Judge for reviewing the said order.

2. The said application of the petitioner was however rejected. The petitioner has, thereupon, obtained the present rule for setting aside the orders stated above. The first ground urged in support of the rule is that the Court had no jurisdiction under Section 151, Civil P.C., to set aside the order rejecting the plaint, which was made on 4th August 1932. It is argued that the order rejecting the plaint is a decree and was consequently appealable. In view of the fact that the plaintiff did not take steps within the time allowed by law to get the said order set aside either by an appeal, as Provided by the Code, or by review, if really there were any grounds, which could attract the provisions of Order 47, Rule 1, Civil P.C., the plaintiff was not entitled to get the order set aside under Section 151, Civil P.C. It is however contended by the learned advocate for the opposite party that the order rejecting the plaint is not appealable, first, because in this case there was no dispute between the parties about the valuation of the suit and secondly because the plaint was rejected before it was registered as a suit.

3. We are of opinion that this contention has no force, because in view of the definite provisions of Order 7, Rule 11, Clause (c), Civil P. C, it is clear that the order in question was an order rejecting a plaint as contemplated by Section 2, Clause (2) of the Code. It is doubtful whether such an order could be reviewed under Order 47, Rule 1, Civil P. C, but there cannot be any doubt that it was appealable as a decree. From what has been stated above it is clear that the suit was filed just at the time when the claim was going to be barred by limitation. The Court has no power in those circumstances, under Section 151, to deprive a defendant of the right obtained by him by the operation of the law of limitation on account of the rejection of the plaint and to order the litigation to be revived: See Kakraul Co-operative Society v. Durganand Jha 1933 Pat 132. The inherent powers of the Court, which are saved by Section 151, are exercised by the Court for the ends of justice.

The defendant after the plaintiff has exhausted his statutory limit of time clearly has justice on his side and the Court has no right to interfere in order to override a lawful bar of limitation: see M.V. Sundaresa Ayyar v. P. Subba Rao 1933 Mad 258.

4. We are therefore clearly of opinion that, when the plaintiff failed to vacate the order rejecting the plaint, within the time prescribed by law, by an appeal against that order, the Court had no jurisdiction to set aside the order under Section 151, Civil Procedure Code and thereby to deprive the defendant of a valuable right, which he had already acquired by virtue of the law of limitation. It was next contended by the learned advocate for the opposite party that this order reviving the plaint is an inter locutary order and therefore this Court should not interfere under Section 115, Civil P.C. In view of the facts of this case we are however of opinion that this is a fit case in which we should interfere and put an end to this litigation, which came to an end as soon as the time for appealing against the rejection of the plaint had expired. The plaintiff had no right, to bring a fresh suit on the same cause of action in view of the bar of limitation, when the order rejecting the plaint was set aside by the Subordinate Judge under Section 151. In fact, by setting aside the order rejecting the plaint, the Court has revived a litigation, which should not have been revived and has thereby deprived the defendant of a very valuable right. We are therefore of opinion that this is a fit case for our interference under Section 115, Civil P.C. The result therefore is that this rule is made absolute. The orders of the learned Subordinate Judge dated 1st August 1933, 8th August 1933, 11th August 1933 and all the subsequent orders based on them are set aside. The order dated 23rd April 1934 is also set aside. The order of the learned Subordinate Judge dated 4th August 1932 is restored and the plaint filed by the plaintiff, opposite party, stands rejected. In the circumstances of this case however we make no order as to costs.


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