KADERBHAI PEERBHAI Vs. HUSENABU CHANDBHAI

JUDGEMENT

(1.) THE opponent-plaintiff filed a suit, being Suit No. 26/1957, in the Court of the Civil Judge, Junior Divison, Dhokla, for possession of certain immoveable property, for setting aside a sale-deed and for a declaration of the plaintiff's title to the suit property and for an injunction against the defendant Issues were framed. and the case was fixed for taking evidence on 4th September 1957, on which date the plaintiff gave an application for an amendment of the plaint. This amendment became necessary as in the plaint as originally filed, there was no prayer for possession. By the amendment the plaintiff added a prayer for possession. THE plaint was arranged by reason of the order made by the Court allowing the application for amendment. For the payment or the additional court-fee stamps of Rs. 193-12-0 time was given to the plaintiff till 28th April 1958. On, the 28th April 1958, both the plaintiff and her Advocate were absent and the Court passed the following order:

(2.) THE plaintiff's case is that she came to know about this dismissal about 8 days efter the said dismissal. On the application of plaintiff for setting aside the dismissal of the suit, the learned trial Judge passed an order on tha 11th September 1958 to restore the plaintiff's suit and ordered the plaintiff to pay special costs amounting to Rs. 20/- to the defendant. THE plaintiff was also directed to pay the requisite court-fee stamp within 15 days from the date of the said order. It appears that the requisite excess court-fee stamp was paid by the plaintiff within the time fixed by the trial Court. It is against this order of tha learned trial Judge restoring the suit on file that the present revision application is made .

(3.) NOW, in this case on the amendment being allowed, the proper court-fee was not paid on the amended plaint and therefore the plaintiff was required to pay the proper court-fee stamp. Therefore, it would fall under clause (c) above. As the court-fee stamp was not paid within the time required by the Court, the Court we bound to reject the plaint under the provisions of the said Rule 11. NOW, when the Court rejects a plaint, by Section 2 of the Civil Procedure Code it is provided that a decree shall be deemed to include the rejection of the plaint. Therefore, the Court's order in this case amounted to a decree. In these circumstances, after making the said order the Court was functus officio and the plaintiff's remedy was by way of an appeal or review. Of course, it was open to the plaintiff to present a fresh plaint in respect of the same cause of action as provided by Order VII, Rule 13 of the Code of Civil Procedure. In these circumstances, the Court's order dismissing the suit amounted to a rejection of the plaint. This was also the view taken by a Full Bench of the Allahabad High Court in the case of Muhammad Sadiq v. Muhammad Jan, ILR 11 All 91. As stated earlier, that once the Court dismissed the suit in the circumstances narrated above and once that order amounted to a decree, two courses were open to the plaintiff- She could have either gone in appeal or review on proper grounds made out against the order of rejection of the plaint on the basis that it was a decree or she could have filed a fresh plaint on the same cause of action under the provisions of Order VII, Rule 13 as stated earlier. The plaintiff did not file an appeal but apparently she made an application to set aside the order of dismissal of the suit which dismissal was set aside by the Court acting under inherent jurisdiction Since the order of dismissal amounted to a decree and the Court was functus officio in this case it was open to the learned trial Judge to treat the application as a review application on proper grounds being made out or as a fresh plaint under Order VII, Rule 13 of the Civil Procedure Code, as the court-fee had been deposited, and to proceed with the suit according to law. It is true that the plaintiff did not say in so many words that her application may be treated as a plaint 'but there was nothing to prevent the Court from treating that application on this footing and doing substantial justice between the parties.