MANIK MAHATO Vs. GANGAPADA MAHATO

JUDGEMENT

(1.) THIS Rule is directed against order No. 79 dated October 1, 1975 passed by the learned Subordinate Judge, Nadia rejecting the plaintiffs petitioners' application under section 151 of the Code of Civil Procedure. It appears that the plaintiffs instituted a suit in 1975 for declaration of title and for injunction. Declaration was valued at Rs. 8000/-and the plaintiffs paid a fixed court fees of Rs. 20/- for such declaration. The plaintiffs also prayed for injunction valuing it at Rs. 100/- and paid court fees of Rs. 8,15 p, in all Rs. 28. 15 p. The defendants in their written statement took objection about valuation of the plaint made by the plaintiffs and a specific issue was framed in respect of valuation. The court found that the court fees paid by the plaintiffs was insufficient and directed them to pay advalorem court fees on the entire valuation of the suit and time was given for compliance by 27. 8. 75. On that date the plaintiffs filed an application for time to file deficit court fee. This application was not moved and the court accordingly rejected the petition on the same day. The Court further noted that no steps were taken and accordingly the plaint was rejected on contest by a subsequent order of the same date, that is, 27. 8. 75. There after on 30. 9. 75 the plaintiffs filed an application under section 151 stating that when the case was called on 27. 8. 75 they could not find out their lawyer and requested the bench clerk for calling the case again after an hour, but as the learned Advocate was not found on call, the learned Judge rejected the application for extension of time to file deficit court fees. This application under section 151 was dismissed by the learned Judge on the view that an order rejecting the plaint is appealable and as it such it was not maintainable and could not be set aside by an application under section 151. The plaintiffs have moved against this order.

(2.) MR. Mitra, appearing for the petitioners, submitted that the court has always the inherent power to recall its own order made earlier in the suit viz. , the order rejecting the application for time. In support he relied on the decision in the case of Sita Ram Sahu vs. Kedarnath Sahu reported in A. I. R. 1957 All. 825, in which it was held that a court has jurisdiction to recall an order which it has made earlier in the suit. It was observed that a court has always power to recall order which has the effect of perpetrating an injustice on a party. It was open to the court to reconsider its order refusing to grant further time to the plaintiff to make good the deficiency in court fees. The plaintiff in that case filed an application for grant of further time to put in the deficit court fees on the ground of plaintiff's illness and the prayer was rejected an the assumption that the plaintiff's illness was not genuine. The court held that it was open to the court to reconsider the position when material was placed before it which showed clearly that the plaintiff's case of his illness was substantially true. The court therefore first recalled its order refusing to grant time to make good the deficiency and once that order was withdrawn the order rejecting the plaint automatically fell through. This course of action was approved by the High Court on the ground that the court has always the inherent power to recall its earlier order passed in a suit.

(3.) MR. Mahato appearing for the O. Ps. submitted that under the provisions of section 4 (2) of the West Bengal Court Fees Act, 1970 the court had no alternative but to reject the plaint after the expiry of the period fixed by it for payment of deficit court fee. Accordingly, the learned Judge was justified in holding that the application under section 151 was not maintainable when the plaint was rejected in consequence.