BASHIR Vs. KHURSHED BIBI

JUDGEMENT

(1.) A Civil Original Suit for partition of the property with regard to House No. 349 situated at Mohalla Dalpatian, Jammu was instituted by the respondents before the Court of learned District Judge, Jammu against the present petitioner and two others. The suit was transferred for its trial to the learned Additional District Judge, Jammu. On 12.03.2008, learned trial Judge passed a preliminary decree for partition of the suit property. Mr. A. G. Sheikh, Advocate was appointed as Commissioner to cause partition on spot after summoning the parties and following the due procedure of the law. It was also directed that before the preliminary decree is drawn, the plaintiffs shall make good deficiency in the court fee by next date. Suit was ordered to be listed on 16.03.2008. On that date, time was extended to make good the deficiency of the court fee. The suit was ordered to be listed on 31.03.2008, on which date, for not making good deficiency in the court fee, learned trial Judge rejected the plaint under Order VII Rule 11 of the Code of Civil Procedure (CPC). Respondentsplaintiffs, thereafter filed an application under Section 149 r/w Section 151 of CPC, praying therein, that the suit be restored to its original number and respondent be permitted to pay the requisite court fee. The said application was resisted by the petitioner. Learned trial Judge vide order dated 31.10.2008 allowed the application of the respondents and ordered for restoration of the suit to its original number, subject to payment of Costs of Rs. 1000/- Respondents were directed to pay deficit court fee on the next date of hearing.

(2.) Petitioner, being aggrieved of the said order, has challenged the same in this revision petition.

(3.) Learned counsel for the petitioner submitted that plaint, which was rejected under Order VII Rule 11 of the CPC, constitutes a decree in terms of Section 2(2) of Code of Civil Procedure, Svt. 1977 (for Short "Code"). Learned counsel submitted that since the decree was drawn up in pursuance to the order of rejection of the plaint, respondents, if aggrieved thereof, had to challenge the same by filing an appeal, as provided by Section 96 of Code read with Order XLI of Code. Learned counsel submitted that after the plaint was rejected, the application could not be entertained by the learned trial court as the learned trial court was functus officio of the matter. Learned counsel, in support of his contention, referred to and relied upon the judgment of Honble Supreme Court in case titled Narpat Singh v. Rajastan Financial Corporation, 2007 2 SLJ 475; Abdul Rashid Rather v. Gh. Ahmad Rather, 2011 1 SLJ 341 and K. N. Mohanan v. N. V. Nalinakshan, 2004 1 CRJR (Kerala High Court) and submitted that this revision petition deserves to be allowed and the impugned order be accordingly set aside.