If provisions of Rule 11 of Order 7of C.P.C .
are read, it is clear that where the plaintiff has paid the
deficit court fee, the court is required to pass an order
directing the plaintiff to make up the deficit within time
stipulated by the court.
It is, therefore, incumbent on the
part of the court to pass an order directing the plaintiff to pay
the court fee within a stipulated time. It appears from the
order that the court before rejecting the plaint for non-
payment of court fee did not give a specific time limit for payment of the
court fee. Therefore court could not have rejected the plaint for
non-payment of the deficit court fee.
In view of this, it is
apparent that the order suffers from the illegality.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
WRIT PETITION NO.3969 OF 2008.
Vishwanath s/o Kisanrao Pardhi,
-VERSUS -
Subhash s/o Uttamrao Lohakure,
Coram: C.L.PANGARKAR,J.
Dated : 17th APRIL, 2009.
1.
ORAL JUDGMENT:
Rule. Rule is made returnable forthwith. Heard
finally with consent of the parties.
This writ petition has been filed against the order
2.
dated 14/7/2008 as well as order dated 5/8/2008.
3.
The petitioner is the original plaintiff. He instituted
a special Civil Suit in the court of the Civil Judge (Sr.Dn.),
Akola for recovery of Rs.3,37,300/-.
The suit was filed on
25/1/2007. The petitioner/plaintiff though had filed civil suit
on 25/1/2007, he had not paid the court fee required. Since
the court fee required was not paid, the suit was put in
objection. It appears that the suit remained in objection for
a long time i.e. till 21/1/2008 i.e. for almost a period of one
year. On that date the court directed the notice to be issued
to the plaintiff/petitioner to remain present and to pay the
Thereafter on 14/7/2008 the court passed an
court fee.
order that since 8/10/2007 nobody is appearing in the
matter and the court fee has not been paid and the court
further passed order rejecting the plaint under Order 7 Rule
Thereafter, petitioner/plaintiff moved an
11 of C.P.C.
application purporting to be an application under Section
151 of C.P.C. for restoration of the suit and for permission to
This application came to be
pay the deficit court fee.
rejected by the court on 5/8/2008 holding that the plaint has
been
rejected
already
and
such
application
was
not
maintenable. Being aggrieved by that, this writ petition has
been preferred.
4.
I have heard Mr.Gode, learned counsel for the
petitioner.
None appears for the respondent though duly
served.
5.
Learned counsel for the petitioner submits that it is
institution of the suit.
a fact that the plaintiff did not pay the deficit court fee after
He submits that the court had
directed a notice to be issued to the petitioner so that the
court fee required could be recovered from the plaintiff. As
per the order, no notice was served to the petitioner and the
was not aware that the court would
petitioner, therefore,
pass the order rejecting the plaint.
He submits that only
when he appeared in the court on 24/7/2008 that he came
to know that the plaint has been rejected on 14/7/2008.
Shri Gode, learned counsel, submits that had the notice
been really served upon the petitioner, the petitioner would
certainly have appeared before the court on that date and
would have paid the court fee. He submits that no
opportunity, in fact, was given by the court to actually make
up the deficit. If provisions of Rule 11 of Order 7of C.P.C .
are read, it is clear that where the plaintiff has paid the
deficit court fee, the court is required to pass an order
directing the plaintiff to make up the deficit within time
It is, therefore, incumbent on the
stipulated by the court.
part o the court to pass an order directing the plaintiff to pay
the court fee within a stipulated time. It appears from the
order that the court before rejecting the plaint for non-
In view of the fact that the
plaintiff to pay the court fee.
payment of court fee did not give a specific time to the
court did not give the specific time limit for payment of the
court fee, the court could not have rejected the plaint for
non-payment of the deficit court fee.
In view of this, it is
apparent that the order suffers from the illegality. Since the
plaint is rejected an application under Section 151 of C.P.C.
was very much maintenable.
6.
In the decision reported in AIR 1990 Orissa 102
(Padmalaya Panda ..vs.. Masinath Mohanty), it has been held
by Their Lordships of Orissa High Court that rejection of
plaint for non-payment of court-fees, application
for its
restoration is maintenable under Section 151 of C.P.C.
I agree with the observation as has been made by the
Lordships in the abovesaid decision. In view of this, I find
that the application under Section 151 of C.P.C. for
restoration of the suit was quite maintenable. It is said that
the procedural law is a handmaid of justice and in view of
this fact the learned judge of the Trial court should have, in
fact, restored the suit and should have directed the plaintiff
is allowed.
The orders passed by the trial court are set
The suit stands restored to file.
aside.
to pay the deficit court fee. In view of this, the writ petition
The plaintiff shall
pay the deficit court fee within period of one month from
today, failing which the plaint shall once again stand
rejected. The petition is allowed. Rule made absolute.
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