RAMBALI RAUT Vs. MOST BACHIA

JUDGEMENT

(1.) This Miscellaneous appeal is directed against the order dated 11th April, 1990, passed in Misc. Case No. 15 of 1988, by Sri B.K. Singh, District Judge, Motihari. There was an appeal before the lower Court (47 of 1983), which was dismissed in default on 22nd March, 1988 in default of payment of Court fee. Subsequently, there was an application for restoration under Order LX1, Rule 19 of the Code of Civil Procedure and this application was heard in Misc. Case No. 15 of 1988 which was dismissed on 11th April, 1990 and against that order, the present Misc. Appeal has been filed before this Court.

(2.) The case of the applicant-appellant is that Rambali Raut was ill from 15th March, 1988 to 13th April, 1988 and, hence, he could not deposit the Court-fee. So he claimed restoration of the appeal. The learned District Judge held that two witnesses were examined on behalf of applicant and the certificate of the Doctor was also exhibited but since the Medical Officer himself was not examined, the applicant-appellant could not prove that he was prevented by sufficient cause from appearing before the Court on 22nd_March, 1988 to deposit the Court-fee. Hence, the aforesaid Misc. Case was dismissed.

(3.) Before me, it was contended that the Court of appeal had already exempted the applicant-appellant from payment of Court-fee and, hence, there was no question of payment of Court fee and since there was no evidence contrary to it, the Misc. case should not have been dismissed. The certified copies of the orders of the appeal concerned have been filed. The order-sheet dated 2-1-1988 shows that there was a prayer by the appellants in the appeal (47 of 1983) to remit the Court-fee. The order dated 2-2-1988 showed that the appellant was directed to file income certificate. However, in view of non-filing of the income certificate and non-depositing of the Court-fee, the appeal was dismissed on 22nd March, 1988. Then, there was Misc. Case No. 15 of 1988 in which an order dated 4-6-1988 shows that income certificate was filed with a prayer to exempt the appellant from paying the Court-fee. The order-sheet dated 16-3-1989 shows that the appellant was exempted from paying the Court fee and then, this Misc. case was admitted. Thereafter, it was heard and dismissed as stated above.