Dharmendra Prasad v. Beni Prasad — 1995 DIGILAW 733 (PAT)

Judgment R. N. Prasad, J. 1. This application in revision has been filed against the order dated 7.12.1994 passed in Miscellaneous case no.33/94, whereby the same has been dismissed. 2. The relevant facts of the case are that the petitioners filed Title suit no.83 of 1991 for a declaration that the decree in title suit no.151 of 1970 was illegal and void and not binding upon them. The plaint was admitted and thereafter an amendment petition was filed by the petitioners which was allowed. Subsequently, after amendment, the petitioners were directed to pay additional court fee, but the same was not paid. Ultimately, the plaint was rejected on 3.8.94. The petitioners filed the above mentioned miscellaneous case under section 151 of the Code of Civil Procedure for restoration of the suit. The petitioners also paid half of the court fee along with the petition for restoration of the suit. The court below rejected the petition on the ground that the rejection of the plaint is a decree and hence it is not maintainable. 3. Learned counsel for the petitioners contended that the court below committed an error in dismissing the miscellaneous case. He pointed out that half of the court fee was paid along with the petition of the miscellaneous case and hence the miscellaneous case should have been treated as review application and the court should have allowed the miscellaneous case. On the other hand learned counsel for the opposite party contended that the rejection of the plaint is a decree, as defined under section 2 (2) of the Code of Civil Procedure, and hence the court is justified in dismissing the miscellaneous case. 4. On consideration of the submissions made by learned counsel for the parties, this much is manifest that the plaint was rejected on the ground that the additional court fee was not paid by the petitioners by the date fixed in the case. The petitioners filed the miscellaneous case under section 151 of the Code of Civil Procedure for restoration of the suit. They also filed half of the court fee along with the petition for restoration. It is true that the rejection of the plaint is a decree as envisaged under section 2 (2) of the Code of Civil procedure. But there is no bar for review under order 47 of the Code of Civil Procedure. They also filed half of the court fee along with the petition for restoration. It is true that the rejection of the plaint is a decree as envisaged under section 2 (2) of the Code of Civil procedure. But there is no bar for review under order 47 of the Code of Civil Procedure. A review petition is maintainable if no appeal is filed against the decree or order. In the case of damodar Prasad and ors. vrs. Aditya prasad and others (A. I. R.1972 Patna 289)it has been held that a petition under Sec.15 of the code of Civil Procedure for restoration of the suit is maintainable. Even assuming that the application under Section 151 of the Code of Civil Procedure was not maintainable, undoubtedly, an application for review under rule I Order 47 of the Code was maintainable. The only difference would be that on such an application half the amount of court fee was payable, which cannot be questioned by the defendants before this Court. In a similar situation in the case of Padmalaya Panda vrs. Masinath Mohanty (A. I. R.1990 Orissa 102)it has been held that an application under section 151 of the Code of Civil Procedure for restoration of the suit is maintainable even though the rejection of plaint amounts to a decree which is appellable. 5. In the instant case it is evident that half of the amount of the court fee was paid along with the petition for restoration; and, thus, satisfied the requirements of the petition under order 47 of the Code of Civil procedure. Even if the rejection of the plaint under Order 7 rule 11 of the Code of Civil procedure is decree and is appellable, there is no bar in filing the application for review of the order under Order 47 rule 1 of the code of Civil Procedure and thus, the petition could have certainly been deemed to be a petition for review under the aforesaid provisions. 6. However, learned counsel for the opposite party relied upon a decision in the case of Samser Singh vrs. Rajendra prasad and ors. (A. I. R.1973 S. C.2384), wherein it has been held that rejection of plaint is an order which amounts to a decree and there is a right of appeal open to the plaintiff. 6. However, learned counsel for the opposite party relied upon a decision in the case of Samser Singh vrs. Rajendra prasad and ors. (A. I. R.1973 S. C.2384), wherein it has been held that rejection of plaint is an order which amounts to a decree and there is a right of appeal open to the plaintiff. There is no dispute to the law laid down by the Supreme Court that rejection of a plaint is a decree as envisaged under section 2 (2) of the Code of civil Procedure, but in the abovementioned case nothing has been said that the application under order 47 rule 1 of the Code of Civil Procedure is maintainable or not for review of the order. In the case of Rameshwar Thakur and others vrs. Smt. Bhagwati devi and others (A. I. R.1982 Patna 75), it has been held that the rejection of the plaint under Order 7 rule 11 is a decree and against the said order a revision application is not maintainable. There is no dispute with regard to the fact that the rejection of plaint is a decree, but the abovementioned decision is not on the point whether a miscellaneous case for restoration of the suit is maintainable or not. Thus, in my view, the decisions relied upon by learned counsel for the opposite party does not come to their rescue. 7. It has already been pointed out that along with the restoration petition under section 151 of the Code of Civil Procedure half amount of the court fee was paid which fulfils the requirements of review petition under Order 47 rule 1 of the Code of Civil procedure and thus it can safely be deemed to be a petition for review of the order rejecting the plaint under Order 7 rule 11 of the Code of Civil Procedure and the same is maintainable and accordingly I am of the view that the court has committed an error in dismissing the miscellaneous case. This application is, accordingly, allowed and the impugned order is set aside, but without cost.