SURAJ BHAN GUPTA Vs. UNION OF INDIA

JUDGEMENT

(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.