JAGDEESH Vs. NARAYAN

JUDGEMENT

(1.) The interesting question involved in this petition filed under Article 227 of the Constitution is : whether against the order dated 14.12.2015, an application under Order 9 Rule 9 read with Section 151 of Code of Civil Procedure was maintainable and whether the Court below in MCA No.07/2017 has rightly passed the order dated 10.11.2017 ?

(2.) Shri Satyam Agrawal, learned counsel for the petitioner/defendant submits that the plaintiffs did not pay the requisite Court fees. For this singular reason, by order dated 14.12015, the suit was held to be not maintainable and was accordingly dismissed. The plaintiffs aggrieved by this order filed an application under Order 9 Rule 9 CPC read with Section 151 CPC for restoration of the civil suit and not for recalling the order dated 14.12015. The said application of plaintiffs was rejected by order dated 101.2017. Aggrieved, the plaintiff filed MCA No.07/2017 under Order 43 Rule 1(c) CPC. This MCA was allowed by Court below by impugned order dated 10.11.2017.

(3.) Learned counsel for the petitioner contended that when petitioner has an alternative remedy of filing appeal against the basic order dated 14.12.2015, the inherent powers flowing from Section 151 CPC could not have been invoked. In addition, the plaintiffs had also an option to file a fresh suit. In other words, it is submitted that when a specific statutory remedy is available to the plaintiffs, the inherent power under Section 151 CPC could not have been invoked by the Court below. In support of his contention, Shri Satyam Agrawal placed reliance on (Padam Sen vs. State of UP, (1961) AIR SC 218) and (Manohar Lal Chopra vs. Seth Hiralal, (1962) AIR SC 527).