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Civil Revision No. 39 of 1953, decided on 20th February 1953, against the order of Senior Sub‑Judge, Bahawalpur, date the 6th December, 1953.

S. 118‑Extension of time to be inferred from Court's allowing a thing to be done beyond prescribed time.

In a pre‑emption suit the plaintiff was allowed to make up deficiency in court‑fee by a certain date. On that day the plaintiff, was absent and the Court ordered simply that the suit be consigned to the record room".

Held that as the suit had not been dismissed and as the court‑fee had been made up when the suit was taken back on file on the application of the plaintiff, it should be taken to have been properly instituted on the date on which the plaint was originally presented.

Extension of time may be inferred from the fact that the Court has actually allowed a thing to be done beyond the prescribed time.

A I R 1926 Mad. 672 and 34 Cal. 20 (F B) ref.

‑This is a civil revision petition against the orders of Senior Sub‑Judge of Bahawalpur, dated 16^th December, 1952 and 6th December, 1953, by which the plaintiff was allowed to make up deficiency in his court‑fee and his suit was declared within time. Maulvi Abdul Rahman filed a suit for pre‑emption in the Court of the Senior Sub‑Judge at Bahawalpur on 1st March, 1952. Along with the plaint which had been presented with a court‑fee of Rs. 10 he made an application to the Court for grant of time to make up the deficiency in the court‑fee on the ground that the Revenue patwaris were on strike and that therefore the necessary record for the calculation of proper court‑fee could not be obtained. There was no presiding officer of that Court at that time and Mr. Mustafa Khan, Sub‑Judge before whom the plaint and the application were placed for orders fixed 27th of March, 1952, for the appointment of an incumbent of the office. By that time Mr. Alvi had been appointed as Senior Sub‑Judge who allowed time to the plaintiff to deposit the deficit stamp till 27th April, 1952. On that day the plaintiff was absent and the Court consigned the case to the record office under the head 'miscellaneous'. Subsequently on the application of the plaintiff his suit was ordered to be restored on 14th November, 1952, and on 16th December, 1952, when the file came up before the presiding officer, the plaintiff paid the necessary court‑fee and process were issued for the defendants. The defendants contested the suit inter alia on the ground that it was time‑barred as the plaintiff had failed to make up the deficiency in the court‑fee within the time allowed by the Court. The Court found this issue in favour of the plaintiff and held that the suit was within time.

In revision Mr. Mustafa Khan for the petitioners has urged that as 27th of April, 1952 was fixed for the deposit of the additional court‑fee, the failure of the plaintiff to appear on that date and make up the deficiency in the court‑fee evidently resulted in the rejection of the plaint under O. VII, rule 11, C. P. C. and that therefore the only remedy open to the plaintiff was by way of appeal as the order rejecting the plaint is a decree as defined in section 2, C. P. C. (See note 11 to O. VII, rule 11, C. P. C. and also A I R 1929 Lah. 83). The contention of the learned counsel is that the application of the plaintiff for restoration of the case was incompetent.

Now as the order sheet shows the plaintiff was granted time to pay the deficit court‑fee on 27th April 1952. On that date the plaintiff was absent and the Senior Sub‑Judge made the following order :‑

"Plaintiff absent, suit to be consigned to the record room under the head 'Miscellaneous".

The order as it stands is quite ambiguous. It is not clear whether the suit was dismissed under O. IX, r. 3 or O. VII rule 11, C. P. C. This ambiguity is, however, set at rest by a later order of the Senior Sub‑Judge, who on the application of the plaintiff for restoration of the file recorded the evidence of his inability to appear on the date fixed and ultimately restored the file. This procedure of the Court clearly shows that the case had been dismissed by it in default of appearance and not on account of the non‑payment of necessary court‑fee by the plaintiff on that date. In these circumstances it would not necessarily mean that the Court proceeded to do something in the form of restoration of the suit, which it had no power to do. The presumption is that the Court does what it has power to do and not something which it has no power to do. The Court has not clearly taken up the question of the non payment of court‑fee as the ground for dismissal of the case. Hence this ground should not be made to weigh against the plaintiff. Again it cannot be argued that since the court‑fee was not paid in time, the plaint should have been rejected, because as soon as the suit was taken back on the file the plaintiff. made up the required deficiency on 16th December, 1952. It would therefore be deemed that the case had in fact been instituted on the 1st March, 1952, when the plaint had been presented on insufficiently stamped paper. Even if the plaintiff had failed to make up the deficiency in court‑fee on the first opportunity, the Court had ample powers under section 148, C. P. C. to enlarge the time fixed by it for which no express order was necessary. Now as held in A I R 1926. Mad. 672 and 34 Cal. 20 (F B) an extension may be inferred from the fact that the Court has actually allowed a thing to be done beyond the prescribed time. Since the Court allowed the plaintiff to make up the court‑fee on 16th December, 1952, the suit shall legally be considered to have been instituted within time. I therefore see no force in this revision petition and dismiss it with costs.

Parties to be informed of the result.

A. H. Petition dismissed.

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