PRAVASH CHANDRA KAR Vs. PREMCHAND SAHUKAR

JUDGEMENT

(1.) This application has been filed by the defendant under Section 25 of the Provincial Small Cause Courts Act, and it is directed against a judgment and order passed by the learned Small Cause Court Judge on the 16th May, 1964, in a Small Cause Court suit. The legality of the order passed by the learned Judge has been challenged upon the following facts: The plaintiff-opposite party had filed this suit in December, 1962, upon insufficient Court-fee. Time to pay the deficit Court fee was granted to the plaintiff; but, for non-compliance with the Court's order, the plaint was rejected on the 7th January, 1963. It appears that the plaintiff deposited the deficit Court-fee on the 17th January, 1963 and applied for inspection of the record on the 18th January and inspected the record on the 19th January. Thereafter, an application was filed under Order XLVII, Rule 1 of the Code of Civil Procedure for review of the order, dated the 7th January, by which the plaint was rejected. The order-sheet indicates the date of filing of this application as 1/2 February 1963. A case was registered as Miscellaneous Case No. 21 of 1963, and thereafter, by an order passed on the 14th March, 1963, the review application was allowed and the suit was restored upon a conditional order that the plaintiff must deposit the Court-fee demanded by the 30th March, 1963. It appears that the suit was thereafter taken to be restored to the the and it proceeded for hearing. It has now been decided by the judgment and order under revision and the suit has been decreed.

(2.) Learned counsel for the petitioner has contended that the application for review filed in February, 1963 had been filed beyond the period of limitation laid down by Article 161 of the Old Limitation Act, and in any event, the application for review was illegally allowed without giving notice to the defendant under Order XLVII, Rule 4 of the Code of Civil Procedure. Learned counsel for the petitioner has referred to paragraph 9 of the Civil Revisional Application, where it has been stated on oath that no notice of the review application had been served on the defendant petitioner a the review application had been allowed ex parte. Learned counsel for the plaintiff-opposite party is not in a position to controvert this fact and rightly so, because the order-sheet of the Court below does not indicate that notice had even been issued on the application for review filed by the plaintiff in February, 1963. The requirement of Order XLVII, Rule 4 of the Code is mandatory and this provision of law is applicable to Courts of Small Causes, just as Order XLVII, Rule 1 applies. But it is contended by learned counsel for the opposite party that the defendant petitioner should have moved this Court directly against the order granting review, passed on the 14th March, 1963, which he never did. In my opinion, however, there is no bar to the petitioner agitating this question as against the final order passed in the suit itself. The whole record of the case is before this Court, and if it is found that the order granting review was not in accordance with law, this Court can set aside that order, acting under Section 25 of the Small Cause Courts Act. The question whether the application for review, filed in February, 1963, was filed beyond the limitation laid down by the old Article 161 of the Limitation Act or not should not, however, be finally determined at this stage. Under the circumstances, therefore, the judgment and order of the Small Cause Court dated the 16th May, 1964, decreeing the suit is set aside and the case remanded to that Court for re-consideration of the application filed by the plaintiff in February, 1963 under Order XLVII of the Code of Civil Procedure, for recalling or reviewing the order, dated the 7th January, 1963, by which the plaint had been rejected. The parties will, therefore, be relegated to the position that they had occupied immediately after this application for review had been filed by the plaintiff. The learned Judge will now issue notice to the defendant of the original suit, who was the opposite party of the review application, for final determination of the review application. All points which will arise in this contest will he open to the plaintiff-petitioner to take and all objections which may be taken by the defendant opposite party will be open to him to take in this matter.

(3.) With these directions, the application is allowed and the case remitted to the Court below. Under the circumstances, however, parties should bear their costs of this Court.