Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 832 (MP)

Har Prasad Sharma v. Nisha Sharma

2009-07-21

K.K.LAHOTI, K.S.CHAUHAN

body2009
ORDER 1. This appeal is directed against the order dated 9.1.2009 by 4th Additional District Judge, Bhopal in Regular Civil Suit No.258-N2008 by which the suit filed by the appellant was dismissed as not maintainable under Order 7 Rule II(B) of the Code of Civil Procedure, 1908. 2. This order is assailed by the appellant on the ground that the earlier suit was dismissed in default of appearance of the parties. Apart from this, in the earlier suit, there was non-compliance of the order dated 2.5.2008 by which the trial Court directed the appellant to make payment of the court fee and even if earlier suit is to be treated as dismissed because of the noncompliance of the order dated 2.5.2008 directing payment of deficit court fee, the present suit was not barred. It was submitted that the impugned order be set aside and the appellant be permitted to make the payment of deficit court fee in the trial Court as per valuation of the suit. 3. Shri Brarnhadatt Singh, learned counsel appearing for the respondents opposed the aforesaid contention and submitted that earlier suit was dismissed because of the non-compliance of the order dated 2.5.2008. The dismissal of the suit amounts to a decree and the second suit was barred. It was submitted that the order passed by the trial Court is in accordance with law and needs no interference by this Court. 4. To appreciate the rival contentions of the parties, factual position in the case may be stated. (a) It is not in dispute that the present suit has been filed by the appellant on the basis of same cause of action on which earlier civil suit was filed and was dismissed on 26.7.2008. In earlier suit, defendants were not served and the trial Court on the basis of the objection raised by the Reader, directed the plaintiff on 2.5.2008 to make payment of deficit court-fee. The aforesaid order was passed under Order 7 Rule 11 (b) of the C.P.C. (b) It is also not in dispute that the deficit court fee as directed by the Court in earlier suit was not paid. However, the case was adjourned and was fixed for hearing on 1.7.2008. On the aforesaid date, the presiding officer was on leave and the case was fixed by the Reader for orders for 26.7.2008. However, the case was adjourned and was fixed for hearing on 1.7.2008. On the aforesaid date, the presiding officer was on leave and the case was fixed by the Reader for orders for 26.7.2008. From the perusal of the order-sheet dated 26.7.2008, it appears that the plaintiff was not present, defendants were unserved and the trial Court considering the order dated 2.5.2008 found that the court-fee was not paid inspite of extension of time, so the suit was dismissed under Order 7 Rule 11 (b) of C.P.C. (c) Thereafter, the appellant filed the present suit on 7.7.2008 claiming the same reliefs which were prayed in earlier suit. On notice, defendant filed an application under Order 7 Rule 11 read with Section 11 and Order 2 Rule 2 C.P.C. contending that the present suit was barred as on the same cause on action, earlier suit was filed and dismissed. Reply of aforesaid application was filed by the plaintiff. The trial Court by the impugned order dismissed the suit as barred and also on the ground that on the earlier round of litigation, plaintiff was directed to make deficit court-fee which was not paid and the present suit was filed without making payment of adequate court-fee, which order is under challenge in this appeal. 5. From the perusal of the record, we find that the trial Court without considering the provision as contained in Order 7 Rule 13 CPC decided the matter. Even if earlier order was passed under Order 7 Rule 11 CPC, second suit on the same cause of action was not barred. For ready reference, we hereby refer Order 7 Rule 11 and Order 7 Rule 13 of CPC; Order 7 Rule 11. Even if earlier order was passed under Order 7 Rule 11 CPC, second suit on the same cause of action was not barred. For ready reference, we hereby refer Order 7 Rule 11 and Order 7 Rule 13 of CPC; Order 7 Rule 11. Rejection of plaint The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9; Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. Rule 13. Where rejection of plaint does not preclude presentation of fresh plaint The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. 6. In this case, earlier suit was dismissed in default of the appearance 0 the plaintiff when the defendants were not served, though the trial Court earlier has passed an order for payment of deficit court-fee. 6. In this case, earlier suit was dismissed in default of the appearance 0 the plaintiff when the defendants were not served, though the trial Court earlier has passed an order for payment of deficit court-fee. If the aforesaid order was passed under Order 9 Rule 3 CPC, then the plaintiff was well within his right to file a fresh suit as per Order 9 Rule 4 CPC which provides that where neither party appears, when the suit was called on for hearing, the suit may be dismissed, but the plaintiff may bring fresh suit subject to law 0 limitation or he may apply for an order to set the dismissal aside. In this case, plaintiff filed a fresh suit in place of seeking a remedy of setting aside dismissal of the earlier suit. 7. Even if the earlier dismissal of the suit is treated because of non-compliance of the order dated 2.5.2008 by which the Court directed to make payment of deficit fee under Order 7 Rule 11 (b) of CPC, then it was rejection of plaint and under Order 7 Rule 13 CPC, the plaintiff was not precluded from presenting a fresh plaint in respect of the same cause of action subject to period of limitation. We are of the considered opinion that the trial Court without considering the provisions as contained in Order 7 Rule 13 and Order 9 Rule 4 of CPC passed the impugned order, which order is not sustainable under the law and is hereby set aside. The matter is remanded back to the trial Court to extend an opportunity to the plaintiff to make payment of deficit court-fee as per valuation in the suit and after extending an opportunity in this regard to proceed with the trial. 8. As present suit was dismissed on an application filed by the respondents/defendants under Order 7 Rule 11 CPC, we direct that cost of this appeal shall, be borne by the respondents/defendants. Counsel's fee Rs.2000/-.