Madhya Pradesh High Court
Pravesh Pathak vs Smt.Shakuntala Sharma on 7 July, 2015
1 C.R.No. 1/2015
(Pravesh Pathak & Ors. Vs. Smt. Shakuntala Sharma & Ors.)
07/07/2015
Shri D.D.Bansal, Advocate for the petitioners/defendants.
Shri M.L.Sharma, Advocate for the respondents No. 1 to
4/plaintiffs.
With the consent of parties, matter is heard finally.
The instant Civil Revision is directed against the order
dated 9/12/2014 passed by the trial Court dismissing the
application of the petitioners/defendants under Section 151 read
with Sections 148, 149 CPC (I.A.No. 1/2014).
Facts relevant and necessary for disposal of this civil
revision are to the effect that petitioners/defendants during pendecy of the Civil Suit No. 48-A/2014 filed an application under Order VI Rule 17 CPC on 26/4/2011 for amendment in the written statement by adding pleadings in the form of counter claim. Trial Court on 19/5/2011 passed the order permitting the amendment on payment of requisite Court fees. Despite several opportunities, the petitioners/defendants failed to deposit requisite Court fees. Resultantly, by order dated 17/1/2012 trial Court exercising powers under Order VII Rule 11 CPC dismissed the counter claim. Thereafter, by an application dated 31/8/2012 filed under Sections 148, 149 and 151 read with Order VII Rule 11 CPC, defendants sought further time to deposit the requisite Court fees. The application was rejected on 20/9/2012. Being aggrieved thereby, petitioners/defendants filed W.P.No. 2 C.R.No. 1/2015 8556/2012 before this Court. The writ petition was dismissed vide order dated 28/7/2014 on the premise that once the counter claim has already been dismissed vide order dated 17/1/2012, trial Court was justified having rejected the application by impugned order dated 20/9/2012 as in absence of counter claim being on record, no application for extension of time for deposit of requisite Court fees could be entertained.
Petitioners/defendants filed the present application (I.A.No.1/2014) under Section 148, 149 and 151 of CPC for setting aside the order dated 17/1/2012 alongwith application (I.A.No.2/2014) under Sections 5 and 14 of Limitation Act for condonation of delay in filing the aforesaid application I.A.No. 1/2014. Trial Court allowed I.A.No. 2/2014 and condone the delay in filing the application I.A.No. 1/2014; however, dismissed I.A.No. 1/2014 on the premise that counter claim has already been dismissed vide order dated 17/1/2012 and that order has attained finality as the order was not challenged before the higher forum and since the application filed under Sections 148,149 and 151 CPC read with Order VII Rule 11 CPC for extension of time in depositing the requisite Court fees has already been rejected on the ground that counter claim has already been dismissed and writ petition arising therefrom has already been rejected by this Court, hence, the instant I.A.No. 1/2014 did not merit consideration and accordingly dismissed the 3 C.R.No. 1/2015 same. Under such circumstances, once the counter claim has already been rejected earlier, the trial Court lacks jurisdiction to entertain the application for setting aside the order dated 17/1/2012.
Challenging the aforesaid order, learned counsel for the petitioners/defendants contends that true it is that after rejection of counter claim on 17/1/2012, petitioners' applications under Section 148,149 and 151 of CPC and under Order VII Rule 11 CPC was rejected by trial Court vide order dated 20/9/2012 and the same was confirmed by High Court vide order dated 28/7/2012 passed in W.P.No. 8556/2012, but the aforesaid rejection of application was on the premise that once the counter claim itself has been rejected, no application for extension of time to deposit Court fees can be entertained. Learned counsel submits that such rejection of application cannot be made basis for rejection of application for restoration of counter claim filed under Section 148, 149 and 151 of CPC vide I.A.No. 1/2014. Moreso, the trial Court upon appreciation of the facts on record, has allowed the application for condonation of delay in filing the application for restoration of counter claim. Learned counsel submits that the Coordinate Bench of this Court in the case of Ajab Singh Vs. Amar Singh, 2000 (1) MPWN 124 has held that against the dismissal of suit, application under Section 151 read with Section 148 and 149 CPC is maintainable for 4 C.R.No. 1/2015 restoration of suit. With the aforesaid submissions, learned counsel for the petitioners submitted that in the light of aforesaid decision, trial Court was not justified having dismissed the application for restoration (I.A.No. 1/2014) under the pretext of dismissal of application filed for extension of time for payment of requisite Court fees.
On the other hand, learned counsel for the respondents/plaintiffs submitted that the counter claim was dismissed as far back as on 17/1/2012. Petitioners/defendants have not taken any steps whatsoever for restoration of counter claim, instead they have filed applications for extension of time for deposit of requisite Court fee. The trial Court as well as High Court has dismissed such applications, therefore, at this belated stage, application for restoration of counter claim has rightly been rejected and therefore, no ground is made out for this Hon'ble Court to interfere with the impugned order in its revisional jurisdiction.
Heard learned counsel for the parties.
There is no doubt that earlier after dismissal of counter claim on 17/1/2012, defendants have filed application for extension of time for deposit of requisite Court fees and same was rejected by trial Court vide order dated 20/9/2012. This order was confirmed by this Court vide order dated 28/7/2012. True that this order has attained finality. However, petitioners' 5 C.R.No. 1/2015 application for restoration of counter claim could not have been dismissed as not maintainable merely because the application for extension of time for deposit of requisite Court fees was rejected at earlier point of time, moreso, when such application has been held to be maintainable by Coordinate Bench of this Court. Besides, trial Court has also found sufficient reasons in submitting the application for restoration of counter claim belatedly and while allowing I.A.No. 2/2014 condoned the delay. Accordingly, in the opinion of this Court, trial Court was not justified having dismissed the application for restoration of counter claim on the ground of earlier dismissal of application for extension of time to deposit the requisite Court fees. Hence, petition is allowed. Impugned order is set aside. The trial Court is directed to consider the application I.A.No. 1/2014 in accordance with law keeping in mind the principles laid down by this Court in the matter of Ajab Singh (supra) and pass appropriate orders.
(Rohit Arya)
jps/- Judge