NIWAS KHANDSARI UDYOG Vs. CANARA BANK BIJNOR

JUDGEMENT

(1.) The plaintiff respondent, Canara Bank, had filed a suit for recovery of certain amount. The said suit was registered as Original Suit No. 74 of 1992. By an order dated 9-7-1992 it was found by the learned Civil Judge, Bijnor that the Court fee of Rs. 41,645/- was in deficit. It had extended time for depositing deficit Court fee on 9-8-1992. The time was granted successively either on the application of the plaintiff or otherwise and the case was being adjourned from time to time even sometimes on account of strike by the lawyers. Ultimately, the plaint was rejected by an order dated 20-1-1994 on account of nonpayment of deficit Court fees under Order VII, Rule 11 of the Code of Civil Procedure. It may be noted that the said order was passed in absence of the parties. The plaintiff had made an application under Order IX, Rule 4 read with Section 148 of the Code of Civil Procedure, on 19-2-1994, Misc. Case No. 45 of 1994 was registered on the said application. The defendant had filed-an objection to the said application. By an order dated 21-3-1997 the said Misc. Case No. 45 of 1994 was allowed and the order dated 20-1 -1994 was recalled. It is this order which has since been challenged by the defendant petitioners by means of an application under Article 226 of the Constitution.

(2.) Mr. A.K. Roy, learned Counsel for the plaintiff-respondent took preliminary objection to the maintainability of the writ petition on the ground that the order impugned is revisable under Section 115 of the Code. Therefore, the ratio decided in the case of Ganga Saran v. Civil Judge, Hapur cannot be attracted to maintain a writ petition.

(3.) Mr. K.M. Asthana, learned Counsel for the petitioners on the other hand contended that in view of Clause (a) of the proviso to section 115 of the Code of Civil Procedure, writ petition is maintainable. Inasmuch as, according to him the impugned order does not dispose of any proceeding or suit and, therefore, Section 115 of the Code is not available against the said order. Thus there being no remedy open, the writ petition is maintainable in view of decision in the case of Ganga Saran (supra) Alternatively, he further contends that he may be permitted and granted leave to amend the cause title and convert this petition into one under Section 115 of the Code of Civil Procedure.