KISHORELAL Vs. SURAJMAL

JUDGEMENT

(1.) This is a second appeal by the defendant in a money suit and arises in the following circumstances :

(2.) The plaintiff-respondent Surajmal filed a money suit for Rs. 781/4/- in the court of Munsif, Hanumangarh on 10-11-1952. it was based on a bond alleged to have been executed by the appellant on 10-11-1949. Thus, it would appear that the plaint was presented just a day before the period of limitation was to expire. The plaintiff affixed court-fee stamps of Rs. 1/4/- only although the proper court-fees reported by the office on that day was Rs. 79/-. On the date of presentation of this plaint there was no Munsif at Hanumangar and, therefore, the office kept the matter pending till the arrival of the Presiding Officer. It appears that this case was later on transferred by the District Judge, Ganganagar to the court of the Civil Judge, Suratgarh where it was registered on 18-4-1953. The Civil Judge then issued notice to the plaintiff and his counsel to "make up the deficiency in court-fees on 2-5-1953. That notice was not served and so a fresh notice was issued for 20-5-1953. That notice was also not served and a third notice was again issued for 5-7-1953. On this date, Birbaldas, counsel for the plaintiff appeared in the court and requested for a short adjournment to enable him to make up the deficiency in court-fees. The case was therefore adjourned to 5-7-1953. On that date, neither the plaintiff nor his counsel put in appearance and, therefore, the court dismissed the claim under Order 17 Rule 3. The plaintiff then presented an application on 13-7-1953 for the restoration of his suit. It was allowed by the trial court and the suit Was restored to its original number. Thereafter, the defendant was called upon to present a written- statement. One of the objections raised by the defendant was that although the trial court had proceeded to dismiss the suit under Order 17 Rule 3, its order was in fact covered by Order 7 Rule 11 and that it had no jurisdiction to restore the suit. This objection was allowed by the court and the plaintiff's suit was dismissed on 28-9-1953. The plaintiff went in appeal which was heard by the Senior Civil Judge, Ganganagar. The learned Judge has also held that the trial court's order dated 10-7-1953 should be deemed to have been made under Order 7 Rule 11. But it is further held by him that the plaintiff was not informed by his counsel to pay the court-fees on 10-7-1953, that it should therefore be presumed that no time was fixed by the court to pay the court-fees and its order rejecting the plaint was therefore wrong. He has allowed the appeal and remanded the case with direction to dispose of the case on merits. It is against this decision that the present appeal has been filed.

(3.) Learned counsel for the appellant has urged that the trial court had rightly held that it had no jurisdiction to restore a suit when the plaint was rejected on account of deficiency in court-lees under Order 7 Rule 11, Civil P. C. It is contended that there was no appeal against that order and the appellate court could not therefore go into the question whether the plaint was rightly rejected or not. It is further urged that the appellate court had committed a mistake in holding that the trial court had jurisdiction to restore the suit. It is not denied by learned counsel for the respondent that the plaintiff had not tiled any appeal against the order rejecting his plaint. He has however tried to support the judgment of the learned Senior Civil Judge to the effect that the trial court could restore the suit even though the plaint was rejected under Order 7, Rule 11, C. P. C.