SWAMI RAM Vs. JAGDISH CHAND

JUDGEMENT

(1.) Having heard learned Counsel for the parties I am of opinion that the order under challenge deserves to be set -aside, albeit, in exercise of the discretionary powers of this Court under section 115, CPC read with Article 227 of the Constitution.

(2.) Petitioner Swami Ram has filed a suit which is pending in the Court of the learned Sub -Judge 1st Class (II) Hamirpur By an order passed on November 12, 1990, the petitioner, as plaintiff, was required to make good the deficiency in the amount of court fee on or before November 30, 1990. The case of the petitioner is that he made necessary arrangements for the amount and was in a position to make good the deficiency on November 30, 1990 but at about 11 30 A M the trial Court passed an order rejecting the plaint under Order VII Rule 11 CPC for failure of the applicant to do so. The order of the learned Judge dated November 30, 1990 says ? "......As per order dated 12 -11 -1990. the plaintiff was allowed time to make good deficiency in Court fees on or before 30 -11 -1990. Today neither the plaintiff is present nor his Counsel has appeared before the Court. During the stipulated period required deficiency in court fees has also not been made good. In these circumstances, the plaint is rejected under Order 7 Rule 11 (2) CPC..... -

(3.) The same day the plaintiff filed an application under section 151 CPC for recalling the aforesaid order and for permission to make good the deficiency in the amount of court fee. This application was rejected by the learned Sub -Judge on May 25, 1991. The learned Judge noticed the plea made on behalf of the plaintiff before him that the Court should have waited at least upto 2 00 P. M before passing the order rejecting the plaint, as was required under the High Court Rules and Orders.