Monday, 16 September 2013

Rejection of plaint for non-payment of court-fees, application for its restoration is maintenable under Section 151 of C.P.C.

 The matter can be also approached from a different angle. The limitation for application of Section 151 of the Code has been precisely stated in the Full Bench decision of this Court reported in AIR 1980 Orissa 162 (E.I.D. Parry Ltd. v. M/s. Agro Sales and Service). Their Lordships have held that once a statutory provision has been made to cover a given field, application of inherent powers would stand regulated and in case statutory law covers the entire field, application of inherent powers would stand excluded. The Code no doubt makes a provision for appeal to a higher court against an order rejecting a plaint under Order 7, Rule 11, C.P.C. for non-payment of court fee, but there is no provision in the Code for redress in the very same Court. Thus the applicability of inherent powers of the court does not stand excluded. Our conclusion, therefore, is that the inherent powers of the court was available for restoration of the suit by setting aside the order of rejection of the plaint if sufficient cause is shown and the learned trial court having failed to exercise the said jurisdiction, the order is revisable.

Orissa High Court
Padmalaya Panda vs Masinath Mohanty on 24 February, 1989
Equivalent citations: AIR 1990 Ori 102

1. This case has come before this Bench on being referred for resolving a conflict in some decisions of the learned single Judges of this Court with regard to the question whether after the order rejecting a plaint under Order 7, Rule 11 of the C.P.C. (hereinafter referred to as the 'Code'), which is appealable, an application under Section 151 of the Code for setting aside or recalling the order would be entertainable by the trial Court. The petitioner filed M.S. No. 54/83 in the Court of Subordinate Judge, Berhampur which was rejected under Order 7, Rule 11, C.P.C. for non-payment of deficit court-fee. The plaintiff filed an application under Section 151, C.P.C. praying for setting aside the order of dismissal and for restoration of the suit in M.J.C. No. 203/83 which was rejected as not maintainable. The plaintiff-petitioner has fifed this revision contending inter alia that the learned trial court has failed to exercise jurisdiction vested in it by law by refusing to entertain the application under Section 151 of the Code, as according to him, there is no other remedy available to meet such a contingency. Whether the court in exercise of its inherent jurisdiction under Section 151 of the Code can set aside an order of dismissal where a plaint has been rejected for non-payment of court-fee was the subject-matter of decision in different cases in this Court. It appears that divergent views have been expressed by the learned single Judges of this Court for which it has become necessary to determine the correct position of law.
2. Order 7, Rule 11 of the Code provides that the plaint shall be rejected in four classes of cases mentioned in Clauses (a) to (d) thereof, one of those clauses being where the plaint is sufficiently stamped. Sub-section (2) of Section 2 of the Code defines a "decree" which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It further provides that rejection of a plaint shall be deemed to be a decree within the meaning of the definition. The learned trial court laving noticed the above provision of law rejected the application under Section 151, C.P.C. on the ground that the rejection of plaint for want of proper court-fee being a decree within the meaning of the Code is appealable and, therefore, the inherent powers of the court which is available to be exercised in the absence of statutory remedy can have no application to set aside such a decree. There is no dispute that the rejection of the plaint amounts to a decree which is appealable. The question for determination is whether the court will still have jurisdiction to set aside such a decree in exercise of its inherent powers under Section 151, C.P.C.
3. The earliest decision of this Court dealing with the aforesaid question of law is the case ofBahadur Pradhani v. Gopal Patel, AIR 1964 Orissa 134. In that case the plaint in a Money Suit was rejected for non-payment of deficit court fee within the time granted by the court. The plaintiff filed a petition under Section 151, C.P.C. for restoration of the suit in the ends of justice. The court allowed the petition and the suit was restored to file. Against the said order a revision was carried up to this court. This Court examined the scope of the inherent powers of the Court saved by Section 151 of the Code and expressed that the provisions of the Code do not control the inherent powers of the court by limiting it or otherwise affecting it. It is a power inherent in the court by virtue of its duties to do justice between the parties before it. It was further explained relying on a decision reported in AIR 1962 SC 527 (Manoharlal v. Seth Hiralal) that the provisions of the Code are not exhaustive as the legislature is incapable of contemplating all possible circumstances which may arise in future litigation. His Lordship while dealing with the applicability of Section 151 of the Code to the situation arose in that case observed that although the order rejecting the plaint was a decree and was appealable, there was hardly any scope for getting any relief in the appeal, as the sufficient cause to be established for setting aside the order rejecting the plaint and for restoration of the suit can be brought to the notice of the trial court more appropriately and more effectively and, therefore, Section 151 of the Code can be made applicable for providing the remedy in such a situation. While so deciding his Lordship did not agree with the contrary view expressed in AIR 1923 Patna 354 (Rameswardhari Singh v. Sadhu Saran) and in another decision reported in AIR 1935 Cal 336 (2) (Sarat Chandra v. Mritunjay). An identical matter again came to this Court in Civil Revision No. 402/73 before another learned single Judge of this Court reported in (1975) 41 Cut LT 231 (Satyabadi Hota v. Jagannath Misra) in which his Lordship having not noticed the previous decision of this court referred to above, relied on the decision reported in AIR 1923 Patna 354 (supra) and a series of other decisions of the same High Court following the same view and came to a conclusion that the order rejecting the plaint is a decree within the meaning of Section 2(2) of the Code and as such is appealable. Such an order in the opinion of the Hon'ble Judge cannot be set aside under Section 151 of the Code as there is a remedy by way of appeal provided in the Code itself, we however, find the same High Court (Patna) in the decision reported in AIR 1972 Patna 289 (Damodar Prasad v. Aditya Maharaj) has taken the contrary view that a petition under Section 151, C.P.C. is main-tainable for restoration of a suit dismissed for non-payment of court-fee. The same point came to be decided by this Court in another decision reported in AIR 1975 Orissa 178 (Balaram Naik v. Krushna Kumari) in which his Lordship made a clear analysis of the scope of Section 151 of the Code with refer-- ence to two decisions of the Supreme Court, namely, the one reported in AIR 1962 SC 527 (supra) and the other in AIR 1964 SC 993 (Arjun Singh v. Mohindra Kumar) andheld that a suit rejected for non-payment of court-fee can be restored under Section 151 of the Code. The Hon'ble Supreme Court in those decisions expressed in unambiguous terms that it is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it could be predicated that the court has the inherent jurisdiction which is saved by Section 151 of the Code. Having accepted the position that the inherent powers of the court cannot override the express provisions of the law, their Lordships held that if there are specific provisions in the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the court cannot be invoked in order to cut across the powers conferred by the Code. Right of appeal to a higher forum does not override nor is in conflict with the inherent powers of a court saved under Section 151 of the Code. The ultimate conclusion of the learned Judge in the last mentioned case of this court was that even if the order rejecting the plaint for non-payment of deficit court-fee is appealable is a decree nevertheless the court can restore the suit for sufficient cause being shown notwithstanding availability of alternative remedy by way of appeal. His Lordship also followed the same reasoning as in the case reported in AIR 1964 Orissa 134 (supra) that if the plaintiff appeals from the order of rejection of the plaint there shall be no material on record to satisfy the appellate court that there was sufficient cause for his default. The view of law expressed in the earlier decision of this Court referred to above has also been followed by this Court in C.A. No. 421/88 disposed of on 17-11-1988 (reported in AIR 1989 Orissa 168) holding that the trial court can exercise jurisdiction under Section 151, C.P.C. to restore a suit dismissed for non-payment of court-fee. Thus except the decision in the case of Satyabadi Hota v. Jagannath Misra reported in (1975) 41 Cut LT 231 which does not notice the earlier decision of this Court, the view of this Court is consistent that Section 151 of the Code is available to be applied to restore a suit rejected under Order 7, Rule 11, C.P.C. for non-payment of court-fee.
4. The matter can be also approached from a different angle. The limitation for application of Section 151 of the Code has been precisely stated in the Full Bench decision of this Court reported in AIR 1980 Orissa 162 (E.I.D. Parry Ltd. v. M/s. Agro Sales and Service). Their Lordships have held that once a statutory provision has been made to cover a given field, application of inherent powers would stand regulated and in case statutory law covers the entire field, application of inherent powers would stand excluded. The Code no doubt makes a provision for appeal to a higher court against an order rejecting a plaint under Order 7, Rule 11, C.P.C. for non-payment of court fee, but there is no provision in the Code for redress in the very same Court. Thus the applicability of inherent powers of the court does not stand excluded. Our conclusion, therefore, is that the inherent powers of the court was available for restoration of the suit by setting aside the order of rejection of the plaint if sufficient cause is shown and the learned trial court having failed to exercise the said jurisdiction, the order is revisable.
5. Now coming to the merits of the revision, we find that the plaintiff wanted to amend the plaint in view of the office note and an application was moved on 11-11-1983 for adjournment on the ground of illness of his Advocate. The learned trial Court rejected the application for time and also rejected the plaint for non-payment of deficit court-fee. In these circumstances, we feel that an opportunity should have been given to the plaintiff to pay the deficit court-fee. The cause shown in the application for restoration, therefore, appears to us as just and sufficient for invoking the jurisdiction of the court to restore the suit in the ends of justice.
6. We, therefore, set aside the impugned order and restore the suit and direct that a firm date be fixed for payment of the deficit court fee and the suit be proceeded from that stage.
Print Page

No comments:

Post a Comment