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2014 DIGILAW 318 (UTT)

Rajnish Chand Bhanot v. Vinod Chand Bhanot

2014-08-26

ALOK SINGH

body2014
Judgment Alok Singh, J. Present petition is filed assailing the order dated 06.05.2014 passed by District Judge in Civil Revision No. 99 of 2012 and order dated 07.12.2012 passed by Civil Judge, (SD), Dehradun whereby order dated 30.05.2012 rejecting the plaint was recalled by the trial court and revision arising therefrom was dismissed. 2. Brief facts of the present case, inter alia, are that plaintiff respondent, herein, preferred O.S. No. 346 of 2011 (Vinod Bhanot Vs. Rajnish Chand Bhanot and another) for declaration and partition of the property; vide order dated 07.02.2012, trial court was pleased to direct the plaintiff respondent, herein, to correct the valuation clause of the plaint and to pay deficit court fee till 09.04.2012; feeling aggrieved, plaintiff preferred a civil revision no. 19 of 2012 before District Judge, Dehradun; learned District Judge/ Revisional Court was pleased to issue notices to the defendants, however, did not stay the effect and operation of order dated 07.02.2012; meanwhile, learned trial court was pleased to adjourn the case to enable the plaintiff to pay deficit court fee and to carry out amendment in the valuation clause of the plaint; plaintiff deposited Rs. 1,62,300/- and Rs. 36,200/- on 28.05.2012 30.05.2012 respectively towards deficit court fee; on 30.05.2012, plaintiff also moved two applications viz. 109A and 111C seeking permission to carry out amendment in the valuation clause of plaint in compliance of order dated 07.02.2012 and to accept the deficit court fee on record, which was deposited by him on 28.05.2012 and 30.05.2012. 3. Learned trial court vide order dated 30.05.2012 was pleased to reject the applications no. 109A and 111 C moved by the plaintiff and was further pleased to reject the plaint under Order 7 Rule 11(c) of the CPC having observed that plaintiff did not deposit the deficit court fee within time and mere pending of civil revision against the order dated 07.02.2012 would not amount to stay of order dated 07.02.2012. Thereafter, plaintiff moved an application under Sections 149, 151 of the CPC before the trial court for recalling of order dated 30.05.2012 with further request to accept the court fee already deposited by him on record and permit the plaintiff to carry out the amendment in the valuation clause of plaint. Learned trial court was pleased to allow the application vide order dated 07.12.2012, feeling aggrieved, defendants petitioners, herein, preferred a civil revision no. Learned trial court was pleased to allow the application vide order dated 07.12.2012, feeling aggrieved, defendants petitioners, herein, preferred a civil revision no. 99 of 2012 before District Judge, which too was dismissed by the Revisional Court vide order dated 06.05.2012. Feeling aggrieved, defendants petitioners, herein, have invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 4. I have heard Mr. Piyush Garg, Advocate for the petitioner and Mr. Vikas Bahuguna, Advocate for respondent and have carefully perused the record. 5. Learned counsel for the petitioners has vehemently argued that since plaint was rejected under Order 7 Rule 11(c) CPC, therefore, plaintiff was having efficacious remedy to file appeal under Section 96 of CPC in view of fact that rejection of plaint would amount to decree. 6. According to learned counsel for the petitioner, if efficacious remedy to file appeal is available, plaintiff ought not to have invoked inherent jurisdiction of the court under Section 151 CPC. 7. Present case has peculiar facts i.e. vide order dated 07.02.2012, plaintiff was directed to carry out amendment in the valuation clause of plaint and to pay deficit court fee. Order dated 07.02.2012 was challenged by plaintiff in civil revision no. 19 of 2012 before District Judge, Dehradun. District Judge/Revisional Court was pleased to issue notice, however, did not stay effect and operation of the order dated 07.02.2012. Meanwhile, plaintiff himself, before rejection of the plaint, deposited the deficit court fee of Rs. 1,62,300/- on 28.05.2012 and balance deficit fee of Rs. 36,200/- on 30.05.2012 and moved two application nos. 109A and 111C seeking permission to carry out the consequential amendment in the valuation clause of the plaint and further making request to take deficit court fee on record, however, learned trial court, without realizing the fact that deficit court fee had already been paid, was pleased to reject the plaint holding that deficit court fee was not paid within time. 8. In my considered opinion, if order, on the face of it, is erroneous, then that court has ample power to recall that erroneous order. Under Order 7 Rule 11(c) CPC, a plaint can be rejected, if deficit court fee has not been paid by the plaintiff on or before the date of rejection of plaint. 8. In my considered opinion, if order, on the face of it, is erroneous, then that court has ample power to recall that erroneous order. Under Order 7 Rule 11(c) CPC, a plaint can be rejected, if deficit court fee has not been paid by the plaintiff on or before the date of rejection of plaint. If deficit court fee is paid beyond the time fixed, however, before the order of rejection of plaint under Order 7 Rule 11(c) CPC could be passed, learned trial court in ordinary course, should accept the deficit court fee extending the period in view of Sections 148 and 149 CPC. 9. In the present case, deficit court fee had already been paid on 28.05.2012 and 30.05.2014, therefore, there was absolutely no occasion to reject the plaint on 30.05.2012. Learned trial court ought to have exercised jurisdiction under Sections 148 & 149 CPC extending the time for making payment of deficit court fee and ought to have allowed application seeking consequential amendment in the valuation clause of the plaint. It seems that learned trial court has passed the order dated 30.05.2012 in haste without appreciating the prevailing law as well as the fact of the case, therefore, learned trial court was well within its jurisdiction for recalling the order dated 30.05.2012. 10. In view of the discussion made hereinbefore, I do not find reason to take contrary view to the view taken by the learned courts below. 11. Writ petition is devoid of merit and as such, is dismissed.