C V VARGHESE Vs. DEVI ACCADEMY

JUDGEMENT

(1.) Plaintiffs are the petitioners. The suit was instituted for money. According to them, for the second plaintiff, the first plaintiff made a cash deposit of Rs. 1,15,000/- with the first defendant and the suit was filed to recover the same. Along with the suit, a court fee of Rs. 835/- was paid. The balance court fee of Rs. 8,340 was paid not in time. The balance court fee ought to have been paid on 21.8.1997.

(2.) According to the plaintiffs, the case was posted for issues on 7.8.1997. But on that date the plaintiffs and counsel were absent because of an in advertent mistake in noting the posting date as 1.9.1997 instead of 7.8.1997. Issues were framed and the case was posted on 21.8.1997 for paying balance court fee. But the counsel for the plaintiffs was under the impression that the case was posted on 1.9.1997. He was not present in court on 21.8.1997. Hence the balance court fee was not paid on that date. On 21.8.1997, the plaint was rejected for non payment of balance court fee. On 3.9.1997 the plaintiffs filed an application under S.151 of the Code of Civil Procedure supported by an affidavit stating the circumstances under which the balance court fee was not paid in time. A separate petition was filed for receiving the balance court fee. The court dismissed the applications on the ground that the rejection of the plaint amounts to a decree and hence an appeal would lie and a petition under S.151 will not lie.

(3.) Learned counsel for the petitioners Shri. N. Viswanatha Iyer brought to my notice the decision in Gopalakrishna Pillai v. Narayanan, AIR 1959 Ker. 406 . In the above case, Varadaraja Iyengar, J. was dealing with a similar question. In that case, time was given to the plaintiffs to pay the balance court fee by 23.11.1953. But they paid only a portion of the amount. Therefore, the suit was dismissed on 7.12.1953. On 6.1.1954, the plaintiffs filed an application 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. Subsequently, the plaintiffs paid the balance of Rs. 160/- and got the restoration application restored. The restoration application was dismissed on the ground that it was not maintainable. The rejection of the plaint was under O.7 R.11(c) of the Code of Civil Procedure and there is an appeal provided against that. The plaintiffs contended that under the inherent powers of the court, the court can restore the suit. His Lordship considered the various decisions which were cited, viz., Rumeshwardhari Singh v. Sadhu Saran, AIR 1923 Patna 354 and Bachan Singh v. Dasrath Singh, AIR 1935 All 985. His Lordship found that the Calcutta and Allahabad High Courts were of the view that the jurisdiction under S.151 of the Code of Civil Procedure should not be exercised so as to deprive a defendant of the right obtained by him by virtue of the law of limitation. His Lordship then referred to the decision of the Travancore High Court in John v. Kuriyan - 26 Trav LJ 932 and the following observations were quoted from that judgment