ISUBMIYA BABAMIYA SHALKHNAG Vs. VISHNU KRISHNA MARATHE

JUDGEMENT

(1.) THIS application has been filed by the defendant against an order passed by the learned Civil Judge, Junior Division, Mangaon, directing the application made by the plaintiff for restoring the plaint that was already rejected by the Court to file "to proceed further",

(2.) THE plaintiff, it appears, had filed the suit being regular Civil Suit No. 62 of 1957 for the purpose of recovering a certain sum of money from the defendant found due at the foot of a certain account This suit was filed on 10th October 1937. On 11th March 1938, the Court passed an order calling upon the plaintiff to clarify (1) how the cause of action arose on 10-10-1954? (2) how the claim was in time? and (3) how and at what rate and on what amount the interest was charged? The order further stated that in case the plaintiff failed to do so within a week the plaint shall be rejected. It appears, however, that the plaintiff either deliberately or through oversight failed to furnish the necessary particulars which were ordered to be furnished by the aforesaid order within the lime allowed by it. Accordingly, on 18th March 1958 when the suit reached hearing before the Court, an order was passed to the effect that the plaintiff had not clarified the points and that, therefore, the plaint was rejected under Order VII Rule 11 of the Code of Civil Procedure.

(3.) THE plaintiff very soon after this order was nude came to learn about it and made an application on 22nd March 1958 for the purpose of setting aside the order rejecting the plaint and taking it on file. A preliminary objection was raised by the defendant to the maintainability of the application itself. It was contended that an order passed under Order VII Rule 11 of the Civil Procedure Code amounted to a decree not by reason of any specific provisions in the Code to that effect but by reason of certain decisions of various Courts, which hold that order rejecting a plaint under Order VII Rule 11 amounted to a decree and that, therefore, such an order was appealable. On behalf of the plaintiff, however, it was contended that the order that was passed was not an order under Order VII Rule 11 but that it was one which was not justified under any provisions of the Code. The learned Judge who heard the preliminary point was of the view that inasmuch as the order rejecting the plaint specifically mentioned that it was made under Order VII Rule 11 of the Code he could not go behind it, and that, therefore, he had to consider the application, which was made by the plaintiff, on the basis that the plaintiff asked by that application to set aside the order rejecting the plaint made under Order VII Rule 11. 3a. As regards the preliminary objection raised by the defendant to the maintainability of the application, the learned Judge relied upon a decision reported in Mohanlal and Co. v. Yolibai, 34 Bom LR 714 : (AIR 1932 Hom 271), and held that the application that was made by the plaintiff for restoring the plaint to file could be entertained under Section 151 of the Code. Accordingly he found on the preliminary issue against the defendant and ordered the application to proceed. It is against this order that the present revision application has been filed by the defendant in the Court.