DHARMENDRA PRASAD Vs. BENI PRASAD

JUDGEMENT

(1.) THIS application in revision has been filed against the order dated 7. 12. 1994 passed in Miscellaneous case no. 33/94, whereby the same has been dismissed.

(2.) THE relevant facts of the case are that the petitioners filed Title suit no. 83 of 1991 for a declaration that the decree in title suit no. 151 of 1970 was illegal and void and not binding upon them. The plaint was admitted and thereafter an amendment petition was filed by the petitioners which was allowed. Subsequently, after amendment, the petitioners were directed to pay additional court fee, but the same was not paid. Ultimately, the plaint was rejected on 3. 8. 94. The petitioners filed the above mentioned miscellaneous case under section 151 of the Code of Civil Procedure for restoration of the suit. The petitioners also paid half of the court fee along with the petition for restoration of the suit. The court below rejected the petition on the ground that the rejection of the plaint is a decree and hence it is not maintainable.

(3.) LEARNED counsel for the petitioners contended that the court below committed an error in dismissing the miscellaneous case. He pointed out that half of the court fee was paid along with the petition of the miscellaneous case and hence the miscellaneous case should have been treated as review application and the court should have allowed the miscellaneous case. On the other hand learned counsel for the opposite party contended that the rejection of the plaint is a decree, as defined under section 2 (2) of the Code of Civil Procedure, and hence the court is justified in dismissing the miscellaneous case.