ESO UMMAN Vs. GHEEVARGHESE ABRAHAM

JUDGEMENT

(1.) I think that the application brought by the plaintiff petitioner for restoring his rejected plaint has been rightly dismissed by the court below. The plaint was filed on 6-3-1956 with what I might call the contemptible court fee of four annas against the fee of Rs. 135/- really due. On 28-3-1956 the plaintiff applied for time to pay the court fee and he was given time till 18-5-1956. On 18-5-1956 the plaintiff neither paid the fee nor asked for time, and the court rejected the plaint under O.7 R.11(c) of the Code. Nearly a month later, on 16-6-1955, the plaintiff filed the present application with which he brought the deficit court fee. All that he alleged in support of the application was that he had been unwell and therefore unable to find the necessary money earlier, and he cited no provision of law, perhaps wisely, for that might only have been a curb on the resourcefulness of his learned counsel.

(2.) From the facts stated it is apparent that the plaintiff had no valid excuse for his default and that even if an application like the present were maintainable under some provision or other of the law it would have to fail on the merits. Nevertheless I shall briefly consider the various provisions that have been mentioned. They are O.9 R.9, O.7 R.13, O.47 R.1 and S.148 and 149 and, of course, 151 of the Code. O.9 R.9 can obviously have no application to a case of rejection; and so far as S.148, 149 and 151 are concerned I am inclined with great respect to follow the view taken in Radhanath Jha v. Bacha Lal Jha and others ( AIR 1955 Pat. 370 Full Bench) and in Ram Das v. Ganga Das ( AIR 1956 Pat. 20 ) that these sections can have no application, the first two because there was no proceeding pending, and the third because, apart from the prohibition in Order XX R.3, the Code provides for a remedy in such cases, by way of appeal (since the rejection of the plaint is a decree as defined in S.2 (2) as also by way of review. The application brought by the plaintiff cannot be treated as an application for review since the requisite court fee was not paid on it, and as for treating the application as a fresh plaint brought under O.7 R.13, it is to be remarked that the suit had become barred even before the rejection of the plaint. Even if, as suggested by Varadaraja Iyengar, J. in Gopalakrishna Pillai v. Narayanan ( 1958 KLT 562 ), by a happy synthesis we mitigate the rigour of Patna by a dose of the liberality of Allahabad in Bachan Singh v. Dasarath Singh (AIR 1935 Allahabad 985) and other cases, and hold that both S.149 and S.151 may be applied subject however to the caution by Calcutta and Hyderabad in Saratchandra Sen v. Mritynujay Ray Chaudhiri (AIR 1935 Calcutta 336) (2) and Mohamud Yunus and another v. Sugha Begum and others (AIR 1955 Hyderabad 156), that the jurisdiction under S.149 and 151 should not be so exercised as to deprive a defendant of the right obtained by him by virtue of the law of limitation, that would not help the plaintiff in this case since, by the time he brought his restoration application, his claim had become barred by time.

(3.) I dismiss the petition with costs.