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Civil Revision Petition No. 239 of 1955 decided on 16th April 1956 under section 115, C. P. C., revising the order of Hamidullah, Senior Civil judge, Gujrat, dated the 19th July, 1955.
‑----Period within which process fees to be paid not fixed Dismissal of appeal for failure to pay such fee‑Illegal.
Where the Appellate Court had not fixed the period within which the appellant should have paid the process fees, dismissal of appeal for failure to pay the fees was illegal.
The policy of the law is that a suit or appeal should not be dismissed for failure to pay process fee unless a period for payment has been fixed by the Court.
The usual words ba‑akhaz talbana contained in the order directing deposit of process fees do not warrant the interpreta tion that fees are to be paid within a reasonable time.
Babu Lal v. Hari Bakhsh 13 P R 1918, Attar Singh v. Karam Chand A I R 1919 Lah. 203 rel.
Ata Ullah Saijad, for Petitioners.
Ghias Muhammad, for Respondents.
Date of hearing : 29th March, 1956.
This revision petition arises but Of a suit for a declaration of ownership of land and for some consequen tial relief, which had been filed by the respondents in the Court of the Civil Judge Mandi Baha‑ud‑Din. The suit was decreed and the petitioners before me filed an appeal before the Senior Civil Judge, Gujrat. The appeal was fixed for hearing on the 19th of July 1955, when it was found that the respondents had not been served due to the default of the petitioners in paying procees fee. The appeal was dismissed under Order XLI rule 18, Civil P. C., and this is an applica tion in revision by the defendants.
The ground urged before me is that Order XLI rule 18, Civil P. C., does not justify the dismissal of an appeal on the ground of non‑payment of process fee unless and until a period for the payment of process fee has been fixed by an order of Court. Rule 18 of Order XLI runs :‑
"Where on the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period fixed, the sum required to defray the cost of serving the notice, the Court may make an order that the appeal be dismissed Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing." It will be observed that an order can be made under this rule only if there has been failure on the part of the petitioners to deposit the sum required to defray the costs of serving the notice "within the period fixed". Admittedly, no period for payment of the process fee had been fixed in this case, and the question is whether the order is warranted in law.
On the wording of the rule as well as on the authorities, I cannot reject the contention put forward on behalf of the petitioners. I have asked learned counsel for the respondents to put any other reasonable interpretation on the words "period fixed" and he is unable to do so. In Babu Lai v. Hari Bakhsh (13 P R 1918) and Attar Singh v. Karam Chand (A I R 1919 Lah. 203) it has been held that an order dismissing an appeal for non‑payment of process fee is not in conformity with law if a period has not been fixed by the Court.
The wording of Order XLI rule 18 itself is clear but any doubt on the point is set at rest by a reference to O. XLVIII rule 1 and Order IX rule 4. Order XLVIII rule 1 provides for the fixing of a ‑period for payment of Court fees for service of all processes issued by Court. Order IX rule 4 provides that when a suit is dismissed for failure to pav process fee the plaintiff may satisfy the Court that lie had sufficient cause for not paying process fee "within the time fixed before the issue of process" and the Court shall then restore the suit. It is clearly the policy of the law that a suit or appeal should not be dismissed for failure to pay process is fee unless a period for payment has been fixed by the Court.
Learned counsel for the respondents contends that if the Court does not specify time for payment of process fee that should mean that payment is to be made within a reasonable time. Learned counsel relies on the fact that when the Court ordered issue of notice of appeal to the respondent it said ba‑akhaz talbana (on payment of court fee). I see no warrant for inferring a reasonable period for payment from the order, A fixed period only means a fixed period and the omission of the Court to pass a proper order cannot be cured by putting on the order the interpretation suggested.
I hold that the order of the learned Senior Civil Judge is illegal on the ground that fie had not fixed any period for payment of process fee and Order XLI rule 18 did not apply to the case. This revision petition is accepted, the order of the learned Senior Civil Judge is set aside and the case remanded to him for decision on the merits. No order as to costs.
A. H. Petition accepted.
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