JADUNANDAN SINGH Vs. SHANKAR SAHU

JUDGEMENT

(1.) This appeal is directed against an order of the Subordinate Judge of Bhagalpur, dated 18 April 1935, granting review of his order, dated 28 March 1935, by which he rejected a plaint for insufficiency of Court-fee. On 28 January 1935 the respondents presented a very insufficiently stamped plaint of a suit valued at Rs. 7,018-8-0. The learned Subordinate Judge ordered that the deficit Court-fee be paid by 27 February 1935. This was not done, and he extended the time upto 28 March 1935. On that day there was an application for further extension of time which was rejected and Court-fee was ordered to be paid in the course of the day. This was not done, and the learned Subordinate Judge rejected the plaint. Thereafter, on 1 April 1935, the respondents applied for review of the order. The ground was that on account of the unavoidable absence of the plaintiffs from Bhagalpur the order rejecting the further extension of time could not be communicated to them. The review was granted and the suit was restored. The plaintiffs were directed to pay the deficit Court-fee on that very day. This was done, and the suit proceeded. The defendants have preferred this appeal against the order granting the review.

(2.) So far as the orders previous to the rejection of the plaint are concerned, namely the orders giving the plaintiffs time to pay the deficit Court-fee, they were within the discretion of the learned. Subordinate Judge. He had full power to do so under Order 7, Rule 11 and Section 148, Civil P.C. Those orders are not questioned in this appeal. The grievance of the appellants however is that the plaint having been rejected for non-compliance with the order of payment of the deficit Court-fee the learned Subordinate Judge had no power to grant a review. The learned Advocate appearing on their behalf contended that the words "sufficient reasons" mentioned in Order 47, Rule 1 mean reasons analogous to those specified immediately previously. He relied upon the decisions of the Privy Council in Chhajju Ram V/s. Held 1922 PC 112 and Biseshar Pratap Sahi V/s. Parath Nath 1934 PC 213. These decisions lay down the proposition contended for by the appellants, but as pointed out in several decisions of different High Courts the distinction is a fine one. Whether a particular reason is or is not analogous to the reasons specifically mentioned in Order 47, Rule 1 is difficult to lay down by any hard and fast rule. I am not prepared to hold that if a plaint be rejected for non- compliance with the order of payment of Court-fee a review of that order is not permissible. In fact the learned Advocate for the appellants conceded that there might be cases of orders rejecting a plaint for non-payment of Court-fee which could be reviewed, but he contended that this was not the case of such a nature.

(3.) In this Court in Rameshwardhari Singh V/s. Sadho Saran Singh 1923 Pat 354, it was held that when the plaintiff failed to make good a deficit in the Court-fee due on the plaint and the plaint was rejected the order was open to review though Section 151, Civil P.C. was not applicable. In the case of Aditya Prasad Singh v. Ramharak Ahir 1925 Pat 435, where the plaint was rejected for non-payment of Court-fee on account of the fraud of the kapardaz, it was held that the Court could restore the suit on proper application whether the application be deemed to be one under Secs.148, 149, 151 or Order 47, Rule 1, read with Section 114, Civil P.C. In another case of Ananta Potedar V/s. Mangal Potedar 1926 Pat 27, it was held that if an appeal has been dismissed for failure to deposit the printing costs a review lay and that the words for any other sufficient reason" covered such, cases. I see no difference between a failure to pay Court-fee and a failure to pay printing costs. Now when a review is granted an appeal is permissible only on the specified grounds and they are, if the order contravenes the provision of Rule 2 or Rule 4 of Order 47, or if the application for review is barred by limitation. Rule 2 has no application as it was granted by the very officer who had passed the order of rejection of the plaint. Rule 4 refers to notice to the opposite party and places restrictions upon a review being granted on the ground of discovery of new and important matter of evidence, namely that there must be strict proof that the new evidence was not within the knowledge of the applicant, or could not be produced at the hearing. In this case no doubt no notice was issued on the defendant appellants, but in my opinion the learned Subordinate Judge has rightly held that as no summons was issued upon the defendants there was no opposite party at that stage. At that stage the matter was between the Court and the plaintiffs. I do not think the order contravenes either Rule 2 or Rule 4 of Order 47. The learned Subordinate Judge has exercised his discretion, and I do not think any interference will be justified. I would therefore dismiss this appeal; but as the plaintiffs had made a default in the payment of Court-fee I would make no order for costs. Varma, J.