DATTATRAY MAHADAJI PHADNIS Vs. RAMA DATT SHARMA

JUDGEMENT

(1.) The present application is stated to be one for the revision, of an order of the Munsif of Banda, dated 21 December 1933, rejecting an application for an order restoring to the Munsif's file an application for review of a previous, order, dated 1 November 1933, rejecting the applicant's plaint. A preliminary objection was raised that the provisions of Section 115, Civil P.C., would not apply in a case like this, where the Munsif had merely refused to exercise the powers vested in him under Sec. 151, Civil P.C. It was however submitted on behalf of the applicant that the order of the Munsif showed that he was dealing with the matter not under Section 151, but under Order 47, Rule 7, Clause (2), Civil P.C., and that in this he was wrong because the application for review had been rejected, not in consequence of the failure of the applicant to appear, (he did in fact appear through his pairokar or agent), but in consequence of his failure to make up the deficiency in court-fees. There has been some argument on this point, but I do not propose to discuss it at length, because it is quite clear from the Munsif's order that he did believe that he was dealing with the matter under Section 151. He remarks at the end of his order: After taking into consideration the entire circumstances, I am satisfied that there are no extenuating circumstances in favour of the applicant on facts as well to justify the exercise of the power conferred under Section 151, Civil P.C.

(2.) The matter might therefore be disposed of summarily on the ground that Section 115, cannot be applied to the case because the Munsif has considered the matter judicially and has refused to exercise his discretion under Section 151, so that no question of jurisdiction arises at all. There are however circumstances in which this. Court would itself be justified in exercising its discretion under Section 151 and setting aside the order of the Munsif. If the circumstances immediately attending the Munsif's order rejecting the application for review are considered by themselves and without reference to what went before they might justify this Court in setting aside the order. The plaint had originally been rejected on 1st November 1932 on the ground that the court-fee paid was insufficient : but subsequently on 22 July, 1933 the Munsif conditionally allowed an application for review of this order on the condition that the balance due for court-fees was paid in full within 25 days, that is to say by 16 August 1933. On that date, according to the affidavit filed by the applicant, he appeared and stated that the money had not yet been received from Bombay, but might arrive at any moment, and it did actually arrive by telegraphic money order the same evening after the Court was closed.

(3.) But when the applicant appeared in Court on 17 August the Munsif said that he had already dismissed the application for review at 10 a.m. If these were the only circumstances to be considered, namely, that the Munsif had believed the case to be a good one for review, and that the condition imposed by him had only been nominally violated - the money having been available on the last date allowed and having been proffered in Court on the following day as soon as the Court opened - it might be held that the Munsif had acted with too much rigour in rejecting the application for review and had in consequence not acted judicially in refusing to set that order aside at a subsequent stage under Section 151. There are however other circumstances in the case that I am bound to take into consideration.