MAMIDALA SUBBAMMA Vs. MADHAVARAPU SRIRAMA MURTHY

JUDGEMENT

(1.) The Short but interesting question that arises for decision in this revision is whether an application to set aside an order made under Order 33, rule 11 is maintainable under Section 151 of the Code of Civil Procedure (hereinafter called Code)

(2.) The material facts leading to this application may briefly be stated. The Petitioner was permitted to sue in forma pauperis for the recovery of a sum of about Rs 4000/- on the foot of a promissory note executed by the defendant in favour of her husband. Subsequently the Original Petition was numbered as Original Suit No 461/66 on the file of the Court of the Principal District Munsif, Rajahmundry. this Court, by its order dt. September, 12, 1967 and in CRP No. 1468/66 held that the plaintiff should be dispaupered witb a direction to pay court fee within the time to be fixed by the lower court. The matter was therefore, ultimately posted before the lower Courl to June, 3, 1968 for payment of the Court fee Neither the petitioner nor his counsel appeared on 3-6-1968. The requisite court fee as per the direction of the Court was not paid by the plain, tiff Hence the suit was dismissed for default. Thereafter, the petitioner filed this application under Order 9 Rule 9 read with section 151 of the Code to restore the suit and dispose of the same afresh on merits after giving opportunity to the parties, It was alleged in the affidavit filed in support of the application that the petitioner's counsel had erroneously noted the date for payment of the Court fee as June, 10, 1968 on which date the petitioner came to the Court to pay the court fee but was informed that the suit was dismissed for default in payment of the requisite court fee as per the direction of the Court, Hence, it was prayed that the default was committed under the circumstances beyond her control and she would be put to irreparable loss and injury if the suit is not restored for disposal on merits on payment of the Court fee.

(3.) This application was opposed by the respondent Contending inter alia that it was not maintainable and that the petitioner and her Advocate had deliberately committed default in payment of the Court tee and the application is liable to be dismissed.