MOHAMMED KANI ROWTHER Vs. HASSAN ROWTHER BULGHESE BEEVI

JUDGEMENT

(1.) The plaintiff who is the revision petitioner complains against the order of the court below directing him to pay additional court fee for the plaint. It is seen that the plaint was rejected on 10-2-1970 under O.7 R.11, CPC., for non payment of additional court fee as ordered. The revision petition was also filed on 10-2-1970 and it was admitted on 11-2-1970 after the rejection of the plaint. An order rejecting a plaint under O.7 R.11 is a. decree as defined under S.2(2), CPC. The proper remedy of the plaintiff is to file an appeal against the order rejecting the plaint and canvass the correctness of the order calling upon the party to pay additional court fee in that appeal.

(2.) But counsel for the revision petitioner relying on the decisions in Chappila v. Chemmaran, 1960 KLT 1361 , Radhakrishnan v. Madhavan Pillai, 1961 KLT 3 , and Kuruvilla Rajagopala Iyer, 1966 KLT 916 , contended that if the order sought to be revised is set aside in revision even though the order rejecting the plaint is a decree it will stand automatically set aside and the lower court will have to proceed with the suit on the merits. The facts in Chappila v. Chemmaran, 1960 KLT 1361, are peculiar and they have no application to the case before us. It is not possible to find out from Radhakrishnan v. Madhavan Pillai, 1961 KLT 3, whether the rejection of the plaint was before or after the admission of the revision petition by this Court. In Kuruvilla v. Rajagopala Iyer 1966 KLT 916, Vaidialingam, J. has taken the view that when the order dismissing the petition to condone the delay in filing an appeal is interfered with in revision the order of the Judge dismissing the appeal based on the rejection of the petition to excuse delay will be absolutely void and will have no effect in law. We cannot agree. The order dismissing the appeal can be only an illegal order which will have to be set aside only in a second appeal and not in a revision petition. If against such dismissals no second appeal will lie, it is open to this Court to set aside the order suo motu under S.115, CPC. We are therefore of the view, with great respect to the learned Judge that the decision in Kuruvilla v. Rajagopala Iyer, 1966 KLT 916, is not correct. It was not contended before us that the correctness of the order for payment of additional court fee cannot be impeached in the appeal that may be filed against the decree.

(3.) We are therefore of the view, that in cases where a plaint is rejected under O.7 R.11, CPC., for default to pay additional court fee even before the admission of a revision petition filed calling for payment of additional court fee, the revision petition is not maintainable. We are not expressing an opinion as to the effect of allowing a revision petition on orders rejecting a plaint after the revision petition is admitted.