RADHANATH JHA Vs. BACHA LAL JHA

JUDGEMENT

(1.) The question involved in this case is whether the petitioner could maintain an application under Section 151, Civil P. C., for the restoration of an appeal preferred in the High Court which was dismissed for default of payment of court-fee. The petitioner Pandit Radhanath Jha filed Second Appeal No. 956 of 1952 in the High Court against the decision of the Additional Subordinate Judge of Darbhanga on 15-9-1952. It was found by the Stamp Reporter that the court-fee on the memorandum of appeal was insufficient and also that the court-fees on the plaint and the memorandum of appeal in the lower appellate court were similarly insufficient. It was reported by the Stamp Reporter that the petitioner was liable to pay deficit court-fee of Rs. 309-6-0 for all the three Courts. On 11-8-1953, the High Court granted two months' time to pay the deficit court-fees due "failing which the memo of appeal will stand dismissed without further reference to a Bench." The petitioner did not pay the deficit court-fee within the time fixed and in consequence the appeal stood dismissed on 11-10-1953. Thereafter, the petitioner has made this application for restoration of the appeal under the provisions of Section 151, Civil P. C. The question for decision is whether such an application is competent.

(2.) In support of the application, Counsel for the petitioner relied upon the decision of the Full Bench in -- 'Ramkhelawan Singh v. Monilal Sahu', AIR 1939 Pat 678 (FB) (A). It was held in that case that an application to set aside an order dismissing an appeal for non-filing of the appellant's list within the time allowed could not be entertained under Order 47, Rule 1, Civil P. C. but could be entertained under Section 151, Civil P. C. But I do not think that the ratio of this case affords any assistance to the petitioner. The basis of the decision was that the appeal preferred to the High Court was dismissed not under any specific provision of the Code of Civil Procedure but one of the rules framed by the High Court, namely, Rule 23 of Chapter IX, Part II. It was observed by Fazl Ali J. (as he then was), who pronounced the opinion of the Full Bench, that there was no rule corresponding to Order 12, Rule 19 of the Code of Civil Procedure and since there was an obvious lacuna, the High Court could act in its inherent jurisdiction and pass the requisite order for the proper administration of justice. In the present case the material facts are. wholly different. The appeal preferred to the High Court was dismissed for non-payment of deficit court-fee. The order of dismissal was made under the provisions of Order 7, Rule 11 read with Section 107(2), Civil P. C. It is settled, so far as this High Court is concerned, that Order 7, Rule 11 applies to the case of a memorandum of appeal -- See the decisions reported in -- 'Gajadhar v. Moti Chand' AIR 1941 Pat 108 (B) and -- 'Rampati Singh v. Shitab Singh', AIR 1939 Pat 432 (C). It is also clear that the dismissal of an appeal under Order 7, Rule 11 for non-payment of court-fee is tantamount to a decree under Section 2(2), Civil P. C, Reference should also be made in this connection to Order 20, Rule 3 which is in the following terms:

(3.) A similar view was expressed by a Division Bench of the Patna High Court in -- 'Rameshwerdhari Singh v. Sadhu Saran', AIR 1923 Pat 354 (D). In that case the plaintiff had failed to make good the deficit court-fee due on the plaint and thereupon the Subordinate Judge rejected the plaint but later on restored the suit under Section 151, Civil P. C. Against this order, the defendants applied to the High Court and it was held by the Division Bench that the 'Subordinate Judge had no power to restore the suit by virtue of its inherent jurisdiction. This case was followed with approval by another Division Bench in a recent case in -- 'Mahanth Ram Das Chela v. Ganga Das', 1954 BLJR 600 (E). It was held in that case that the Court has no power under Section 151, Civil P. C., to restore an appeal which was dismissed for default of payment of court-fee cm the memorandum of appeal.