GOPALAKRISHNA PILLAI Vs. NARAYANAN

JUDGEMENT

(1.) This revision is by the plaintiffs 1 to 3 against an order of the court below refusing to restore their plaint which had been rejected for default of payment of deficit court fees.

(2.) The plaintiffs 1 to 3 were junior members in a Nair sub-tarwad consisting of themselves and defendants 1 to 3. They laid this suit on 29-3-1125 in forma pauperis (i) for declaration that a deed of partition of 1107 and executed during their minority by the adult members was not binding on the sub-tarwad, (ii) for setting aside various alienations executed by the adult members in favour of defendants 4 to 10 on the strength of the partition deed, and (iii) to recover the properties on behalf of the sub-tarwad with mesne profits. During the course of the suit, the plaintiffs were able to compromise with most of the alienees, but this brought on a petition by the 4th defendant dated 9-10 -1953 to dispauper them. The plaintiffs agreed to pay the court fees but by 23-11-1953 they paid only Rs. 25 out of the total of Rs. 240 due. The court therefore dismissed the suit on 7-12-1953. On 6-1-1954 the plaintiffs filed their application herein to restore the suit on payment of Rs. 55/- and seeking to reduce the plaint valuation for the purpose. The court however directed payment in full and on default of the plaintiffs to comply, dismissed the application to restore on 23-9-1954. Subsequently the plaintiffs paid the balance of Rs. 160 and got the restoration application of 6-1-1954 restored. On the application being again taken up, the 4th defendant objected to its maintainability. This objection the court below upheld and hence this revision.

(3.) In arriving at its decision as above, the court below proceeded on the basis that the dismissal of the suit herein on 7-12-1953 amounted to the rejection of plaint under O.7, R.11 (c) C. P. C. and consequently the application for restoration filed by the plaintiff could be allowed if at all, only in the exercise of the inherent jurisdiction of the court and that again only when a fresh plaint under O.7, R.13 C. P. C. would not be barred by limitation if instituted on the date of the application. And as the plaintiff's application of 6-1-1954 did not satisfy this latter test the court below felt itself bound to reject it. Learned counsel for the plaintiffs complains that the test laid down by the court below as above is too narrow and that in any event it has not been properly applied in the case.