Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Civil Revision Application No. 286 of 1961, decided on 25th April 1963.
-- Rejection of plaint under O. VII, r. 2‑Decree within meaning of S.2(2).
Remedy available under specific provisions of Code ‑ Inherent powers under section cannot be invoked.
Words "at any stage" ‑Mean "at any stage" of proceedings and not "at any time" ‑ Termination of proceedings with passing of decree ---Provisions not applicable‑Plaint rejected under O. VII, r. 11, C. P. C.‑Extension of time under S. 149 to make up deficiency of Court fee cannot be made.
Provisions of r. 4, O. IX, applicable only to suits dismissed under rr. 2 & 3 of O. IX‑Plaint rejected under O. VII, r. 2‑Remedy lies under O. VII, r. 13.
Plaint rejected under O. VII, r. 11 ‑ Suit becoming time‑barred‑Rejected plaint cannot be restored by invoking inherent powers under S. 151.
Absence of jurisdiction and erroneous decision in exercise of jurisdiction‑Distinguished.
Court restoring suit dismissed for default after claim of plaintiff becomes time‑barred‑Order of restoration may be wrong for insufficiency of ground for restoration but is not illegal or without jurisdiction(Obiter).
Ram Dayal v. Sher Singh I L R 1923 All. 518 ; S. M.
Bose v. Hafiz Muhammad Fateh Nasib A I R 1934 Cal. 623 ; Saratchandra v. Mrityunjay A I R 1935 Cal. 336‑2 ; Atul Krishna v. Browrilal A I R 1952 Assam 149 ; Md. Yunus v. Sugra Begum A I R 1955 Hyd. 156 ; Kishorelal v. Surajmal A I R 1956 Raj. 164 ; Hubraj Singh v. Ram Dasi A I R 1954 All. 719 ; Messrs Ghulam Farid‑Muhammad Latif v. Central Bank of India Limited, Lahore P L D 1954 Lah. 575 and Amir Hassan Khan v. Sheo Bakhsh Singh I L R 11 Cal. 6 ref.
Ahmad Saeed for Applicant.
S. M. Raza for Respondent.
Date of hearing : 17th April 1963.
In this application the request of the applicant is that the pf4ers of Mr. Ali Muhammad V. Akhound, Sub‑Judge, First Class of Karachi, dated the 19th of July 1960, the 28th of November 1960, and the 13th of December 1960, be revised and that the suit of the respondent, which was registered for trial, be dismissed with costs.
2. The facts are that the respondent filed a suit on the 15th of February 1960, for the recovery of Rs. 15,000 as damages for his malicious prosecution on a report lodged by the present appli cant. The court‑fee payable on it was Rs. 800, but the court‑fee of Rs. 30 only was affixed on the plaint. The office of the trial Court pointed out the deficiency, and seven days' time was granted for making it up. The respondent‑plaintiff apparently took no steps to carry out the order, nor did he apply for more time. A notice was, however, issued to him on the 15th of April 1960, extending time up to the 4th of May 1960. Again nothing was done in that behalf by the respondent‑plaintiff ;therefore, another notice was issued on the 3rd of June 1960, allowing him to make up the deficiency of the court‑fee by the 18th of July 1960. On the last date the respondent‑plaintiff made an application for extension of time. On the 19th of July 1960, the time was extended up to the 27th of July 1960. As the deficiency was not made up within that time, the plaint was rejected by the Court on the 28th of July 1960. The respondent plaintiff took no action up to the 26th of October 1960, when he applied under sections 148 and 151 of the C. P. C., for further extension of time to make up the deficiency and for restoration of the rejected plaint. The reason for the failure to make up the deficiency was set out in an affidavit which accom panied the application and a medical certificate was attached to it to show that the respondent‑plaintiff was unable owing to his illness during his visit to Lahore to supply the deficiency within the time that was granted to him. The medical certificate was as follows :‑
"This is to certify that Muhammad Sharif son of Khuda Baksh resident of Mughulpura has been under my treatment for typhoid from 6‑7‑60 to 31‑8‑60. He was recommended 2 days' rest in addition. On account of this disease he was unable to attend .the Court at Karachi."
This application was accepted by the trial Court on the 28th of November 1960, by the following ex parte order :‑
"This plaint was rejected on 28th July 1960 for failure to pay the deficit court‑fee. The affidavit now filed in support of the application shows that the plaintiff was ill and hence he could not come to pay the deficit court‑fee. This is a sufficient ground made out by the plaintiff and the suit may be restored on payment of the deficit court‑fee within a fortnight."
3. I may mention here that the claim of the respondent -plaintiff for damages had by this time become barred by limitation (Article 23 of the Limitation Act) because he had been acquitted on the 16th of February 1959. Moreover, no mention was made in the order of restoration of the delay that had been made in applying for it. The medical certificate explains 57 days' delay, but the application was made after 89 days of the rejection of the plaint.
4. The last order of the Court was again not complied with, but an application was made on the 13th of December 1960, for more time. It was granted on the same day by extending the time up to the 16th of December 1960. In compliance with this order the deficiency of the court‑fee was made up and the suit was ordered to be registered for trial after 141 days of the rejection of the plaint.
5. Counsel for the applicant has supported this revision application against the first mentioned three orders by advancing the following arguments
(i) The application under sections 148 and 151 of the C. P. C., for extension of time and restoration of the plaint was not competent.
(ii) The trial Court had no jurisdiction to grant the above. mentioned reliefs in exercise of its inherent powers.
(iii) The plaint having been rejected under Order VII, rule 11 of the C. P. C., its restoration was tantamount to permitting the institution of a new suit for trial after it was barred by time.
6. Counsel for the parties represented during the hearing of the application that there was no ruling of any Court of Pakistan in support of or against the above‑mentioned three arguments ; therefore, they entirely relied on the Indian judicial precedents. The judgments cited by them do not embody the discussion of the three contentions separately. I would, therefore, mention them here and then discuss each of the three contentions separately. Counsel for the applicant has cited‑
(i) Ram Dayal v. Sher Singh I L R 1923 All. 518,
(ii) S. M. Bose v. Hafiz Muhammad Fateh Nasib A I R 1934 Cal. 62 ,
(iii) Saratchandra v. Mrityunjay A I R 1935 Cal. 336 (2),
(iv) Atul Krishna v. Browrilal A I R 1952 Assam 149,
(v) Md. Yunus v. Sugra Begum A I R 1955 Hyd. 156, and
(vi) Kishorelal v. Surajmal A I R 1956 Rajas. 164. Counsel for the respondent‑plaintiff has cited‑
Hubraj Singh v. Ram Dasi A I R 1954 All. 719.
He has further raised a preliminary objection to the maintain ability of this revision application and supported it by citing‑ Messrs Ghulam Farid‑Muhammad Latif v. Central Bank of India Limited, Lahore P L D 1954 Lah. 575.
7. The preliminary objection, in the language of the judgment in Messrs Ghulam Farid‑Muhammad Latif was as follows :‑
"A perusal of these rulings would show that in several cases the lower Courts had passed orders without jurisdiction and in some cases they had erroneously decided question relating to limitation, but the High Court refused to interfere in revision on the ground that substantial justice had been done between the parties,"
This objection, however, could not prevail unless counsel was able to show that substantial justice had been done by twice extending the time to make up the deficiency of court fee after the rejection of the plaint and by restoring the plaint after the claim had become barred by time. The equities in favour of the respondent‑plaintiff are that, according to him, he was wrongfully prosecuted and thus disgraced as well as harassed, and that he has made up the deficiency of the court‑fee of the value of Rs. 770. As against this, the stand of the applicant is that the orders of the trial Court, which are sought to be revised are technically bad, and that they suffer from absence of jurisdic tion, or at least, from erroneous as well as unjust exercise of jurisdiction. These considerations do not allow the dismissal of this revision application without first examining the validity of the criticism made on behalf of the applicant. The ultimate result of the objection and of this application mint, in these circumstances, depend on the decision of the three contentions which have been reproduced above.
8. The first contention consists of several parts. Its first part is that the rejection of the plaint under Order VII, rule 11 of the C. P. C., was a decree as defined by section 2(2) of the C. P. C.1 This proposition is correct and was not questioned. From that it follows that the trial Court was debarred, in terms of Order XX, rule 3 of the C. P. C., from altering or adding anything to the decree save as provided by section 152 or on review." Thus the only authority to amend it, which still vested in it, was limited by the provisions of section 151 of the C. P. C., and additionally, the Court had the authority to review its own order within the scope of Order XLVII, rule 1 of C. P. C. If the respondent‑plaintiff could not obtain satisfactory relief by these two methods, it was open to him to present a fresh plaint in respect of the same cause of action in terms of Order VII, rule 13 of the C. P. C., or to prefer an appeal to the District Judge under section 96 of the C. P. C., or a revision from that order under section 115 of the C. P. C., to this Court. As these specific provisions to afford redresses existed in the Code of Civil Procedure, he could not invoke inherent powers of the Court for obtaining a redress which by the implication of the express provisions had been negatived by the Code. His application under section 151 of the C. P. C., was, therefore, not competent.
9. Along with section 151, C. P. C., he had used section 148 of the C. P. C., for getting the period of time extended to make up the deficiency of the court‑fee. The correct provision was section 149, and not section 148 of the C. P. C. That section is as follows :
"149. Power to make up deficiency of court fees. Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court‑fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court‑fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance,"
The words "at any stage", which occur in the above section, may be noted. The Court is not empowered to allow a person by whom court‑fees is payable to pay it at any time, for its power is limited by the words "at any stage" to the stages of the pro ceedings. After the termination of the proceedings by a decree, the provision ceased to be applicable. This stands to reason, because there is no plaint, before the Court after it is rejected, on which court‑fees may be ordered to be paid ; nor can the plaint, speaking strictly logically, be restored while it suffers from the same defect which had proved fatal to it, because the moment' it is restored, the action is bound to prove fatal again. The order restoring the rejected plaint subject to payment of the deficiency thus suffered from inherent contradiction.
10. Rule 4 of Order IX of the C. P. C., was not applicable to this case. The rule is as follows :‑
"Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his not paying the court‑fee and postal charges (if any) required within the time fixed before the issue of the summons, or for his non appearance, as the case may be, the Court may make an order setting aside the dismissal and shall appoint a day for proceed ing with the suit."
A perusal of the above rule leaves no doubt that it applies to those suits only which are dismissed under rules 2 and 3 of that Order; that is to say, where there is default in making appearance or in paying the court‑fee or postal charges for service of summons. In such circumstances, two remedies are provided by the above rule‑one is to bring a "fresh suit" (not to present a fresh plaint) and the other is to apply for the restoration of the dismissed suit. Deficiency in court‑fee on the plaint is dealt with in rules 11 and 13 of Order VII of the C. P. C. The remedy provided by the latter rule is not restoration of the plaint but presentation of afresh plaint only.
11. The second contention which has been set out in para graph 5 above merely deals with the exercise of inherent powers of the Court by the Court itself as opposed to the appeal to such powers by a party to a proceeding. Metaphorically speaking, the second contention merely spotlights the same powers of the Court, E or, in other words, the same picture from the side of the Court. The contention is correct because there is no doubt that inherent powers are not meant to be exercised for overriding any procedure which has been specifically laid down by the Code. They are supplementary powers for doing justice, and not for setting the Code at naught, nor for defeating the provisions of any law.
12. The third contention is also correct, but needs a short, explanation for presenting it as self‑evident. The explanation that after the plaint was rejected and the claim of the respondent plaintiff became barred by time, he could present a fresh plaint in terms of Order VII, rule 13 of the C. P. C., or apply to the same Court for the review of the order of rejection or for the amendment of the decree. The latter two remedies were obviously unhelpful to him ; therefore, the only effective remedy available to him in that Court was by presenting a new plaint. If in substitution of it, he caused the rejected plaint to be restored on the pretext that he was invoking inherent powers of the Court and if additionally the order of restoration carried with it, as it obviously did, the implication that the suit was to be heard as within time, the law of limitation was also defeated. This course the trial Court had neither any justification nor the jurisdiction to adopt.
13. I may add by way of clarification that absence of jurisdiction is different from making a wrong decision in exercise of jurisdiction. Every restoration of z time‑barred claim is no without jurisdiction. Let me explain this distinction, If, for instance, a Court restores under Order IX, rule 4, C. P. C., a G suit which was dismissed for default and the order of restoration is made after the claim of the plaintiff became barred by limitation, it exercises its judicial powers which are not expected to be exercised, without good grounds, in such a manner as to deprive g the defendant of the right accrued to him to repudiate the plain tiff's claim by raising the plea of limitation, but insufficiency of the grounds for restoration only renders the order wrong. It neither takes away the jurisdiction, nor makes the exercise of the jurisdic tion illegal or even materially irregular. See the judgment of the Privy Council in Amir Hassan Khan v. Sheo Bakhsh Singh (ILR 11 Ca1.6). But in the case now before me the order of restoration of the rejected plaint made in exercise of inherent powers or in exercise of the powers conferred by Order IX, rule 4 of the C. P. C., was without jurisdiction because the Court had no such inherent powers and because Order IX, rule 4 of the C. P. C., was not applic able to the facts of this case. The order of restoration was thus without authority, in sheer violation of the law of limitation as well as in unjust disregard of the right of an effective defence of the present applicant which had accrued to him under the Limitation Act.
14. The preliminary objection is, therefore, overruled, the revision application is accepted, and the orders of the trial Court dated the 28th of November, and the 13th and 16th of December 1960, are set aside. The respondent shall pay the costs of the applicant throughout.
K. B. A.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer