MAHANTH RAM DAS CHELA Vs. GANGA DAS

JUDGEMENT

(1.) The petitioner Mahanth Ramdas Chela had instituted a suit before the Subordinate Judge of Gaya asking for a declaration that he was the duly constituted Mahant of Moghal Kuan Sangat and of Bhandajore Sangat. When the plaint was originally presented it did not contain a relief for possession of the endowed properties. The suit was dismissed by the Subordinate Judge who found that the plaintiff had not established that he was initiated as a chela of Gulab Das, the previous Mahant, and further that the custom of nomination as alleged by the plaintiff was not proved. The Subordinate Judge also found that Bhandajore Sangat and the properties described in touzi B/106 were in possession of the defendant although the plaintiff was in possession of the Moghal Kuan Sangat. The Subordinate Judge, therefore, held that the suit was barred under Section 42, Specific Relief Act. Against the decision of the learned Subordinate Judge, First Appeal No. 389 of 1947 was presented before the High Court. When the appeal came before us in the first instance, we gave a hearing to the parries and decided that the main question at issue should be answered in favour of the plaintiff and that a decree should be granted stating that the plaintiff was the duly constituted Mahant of Moghal Kuan Sangat and of Bhandajore Sangat and that he was entitled to be placed in the management of the endowed properties belonging to these two Sangats. But the difficulty in the way of the plaintiff appellant was that in the plaint as originally presented there was no relief for confirmation or, in the alternative, for recovery of possession of the endowed properties. During the hearing of the appeal, the petitioner realised that the provisions of Section 42, Specific Relief Act, might stand in his way and therefore amended his plaint by asking for additional relief for confirmation or in the alternative for recovery of possession of the properties attached to the two Sangats. In view of the amendment made in the plaint, we called for a report from the Subordinate Judge on the question of valuation so that the suit might be properly valued and the plaintiff might be granted an opportunity to pay the court-fees. On 30-3-1954, we heard the parties again in the matter of valuation and decided that the plaintiff should pay ad valorem court-fee on the amount of Rs. 12,178-4-0 in the trial court and also, on the memorandum of appeal in the High Court; we granted the plaintiff three months time to pay the court-fee for the trial Court and also for the High Court. It is necessary that the operative portion of this order should be quoted in full:

(2.) It appears that the High Court office intimated to Counsel for the petitioner on 8-4-1954 that the deficit court-fee payable was Rs. 1987-8-0. The petitioner did not pay the court-fee within the lime allowed. On 7-7-1954, the petitioner applied to the Vacation Judge, Choudhary J., for extension of time on the ground that the petitioner had suffered from an attack of influenza and could not arrange for the money. Choudhary J. ordered that the matter should be placed before a Division Bench. On 13-7-1954, the petition for extension of time was placed before me and Ahmad j. We rejected the petition on the ground that by the order of the Bench dated 30-3-1954, the appeal had already stood dismissed as the amount was not paid within the time given. Thereafter, the petitioner filed an application under Section 151 Civil P.C. asking that the order of dismissal should be set aside and the appeal should be restored and that time should be extended for payment of the deficit court-fee. This petition came up before, the Chief Justice and Narayan J. who heard the parties on 2-9-1954, and rejected the petition on the ground that the order of the Bench dated 30-3-1954, was a final order and not an interlocutory order and there was no power in the High Court to restore the appeal under Section 151, Civil P. C. The learned Judges referred to Order 7, Rule 11, Civil P.C. and said' that the decision of this Court dated 30-3-1954, was equivalent to a decree and could not be set aside by a proceeding, under Section 151 Civil P.C. but might be open to "review. In reaching the conclusion, the learned Judges fallowed a previous decision of this Court in Rameshwardhari Singh v. Sadhu Saran, AIR 1923 Pat. 354 (A) in which it was held that where the plaintiff failed to make good a deficit in the court-fee due on the plaint, and the plaint was rejected, the Court had no power to restore the suit either under Section 151 or under Order 9, Rule 9, Civil P. C. The petitioner, however, prayed before the Bench that the application under Section 151 might be treated as an application for review under Order 47, Rule 1 and prayed for a month's time to pay the requisite court-fee. This prayer was granted by the learned Judges and they ordered that the application should be treated as an application for review and the petitioner should be granted one month's time for paying the requisite court-fee.

(3.) In compliance with this order, the petitioner has paid the court-fee payable on the review application.