Madhya Pradesh High Court
Pravesh Pathak vs Smt. Shakuntala Sharma on 2 September, 2015
(1)
C.R.No.61/2015
(Pravesh Pathak & Others Vs. Smt. Shakuntala
Sharma and others)
2/09/2015
Shri D.D.Bansal, Advocate for the petitioners.
Shri M.L.Sharma, Advocate for respondent nos. 1
and 2.
Heard, counsel for the parties.
This revision petition, under Section 115 of the
CPC filed by the petitioners-defendant nos. 2 to 6, is
directed against the order dated 31/7/2015 passed by
III ADJ, Gwalior in MJC No. 128-A/2014 (COS No.48-
A/14), whereby the application of the defendants to
take on record the counter claim, has been dismissed.
Facts necessary and relevant for disposal of this
revision petition are in narrow compass.
On 19/5/2011, petitioners-defendants' application under Order 6 Rule 17 was allowed and they were permitted to file counter claim and to pay the requisite Court fee. However, despite opportunities having been afforded, defendants failed to pay the Court fee which led to dismissal of the counter claim under Order 7 Rule 11, CPC on 17/1/12. Thereafter, it appears that the petitioners-defendants filed an application under Sections 149 and 151 read with (2) C.R.No.61/2015 (Pravesh Pathak & Others Vs. Smt. Shakuntala Sharma and others) Order 7 Rule 11, CPC on 31/8/12 for permission to pay the requisite Court fee. The said application was rejected by the trial Court on 20/9/12. Aggrieved thereby, W.P. No.8556/12 was filed by the petitioners- defendants. The writ Court dismissed the petition on the permise that once the counter claim itself has been rejected, question of payment of Court fee did not arise.
Thereafter, petitioners-defendants filed another application under Section 151 read with Sections 148 and 149 of the CPC for taking on record the counter claim together with an application under Section 5 read with 14 of the Limitation Act seeking condonation of delay in filing the application. It appears that the trial Court condoned the delay in filing the aforesaid application but rejected the application for taking the counter claim on record. Being aggrieved thereby, revision petition No. 1/15 was preferred before this Court. This Court ruled that application for taking on record the counter claim could not have been dismissed as not maintainable merely because the (3) C.R.No.61/2015 (Pravesh Pathak & Others Vs. Smt. Shakuntala Sharma and others) application for extension of time for deposit of requisite court fee had been rejected at an earlier point of time, moreso, when such an application has been held to be maintainable by a co-ordinate Bench of this Court. Besides, the application for condonation of delay had been allowed by the trial Court. Accordingly, this Court set aside the order passed by the trial Court and directed the trial Court to consider the application for taking the counter claim on record keeping in mind the principles laid down by this Court in the case of Ajay Singh Vs. Amar Singh (2000 (1) MPWN 77).
Learned counsel contends that the principle of law, elaborately dealt with by the Orrisa High Court in the case of Padmalaya Panda Vs. Masinath Mohanty (AIR 1990 Orissa 102) and followed by this Court while deciding Ajab Singh's case (Supra), relevant for the purpose of case in hand are paragraphs 4,5 and 6, which are as under:-
"4. The matter can also be approached from a different angle. The limitation for application of Section 151 of the Code has been precisely stated in the Full Bench decision of this Court reported in AIR 1980 (4) C.R.No.61/2015 (Pravesh Pathak & Others Vs. Smt. Shakuntala Sharma and others) Orissa 162 (E.I.D.Parry Ltd. v. M/s. Agro Sales and Service). Their Lordships have held that once a statutory provision has been made to cover a given field, application of inherent powers would stand regulated and in case statutory law covers the entire field, application of inherent powers would stand excluded. The Code no doubt makes a provision for appeal to a higher court against an order rejecting a plaint under Order 7, Rule 11, C.P.C. for non-payment of court fee, but there is no provision in the Code for redress in the very same Court. Thus the applicability of inherent powers of the court does not stand excluded. Our conclusion, therefore, is that the inherent powers of the Court was available for restoration of the suit by setting aside the order of rejection of the plaint if sufficient cause is shown and the learned trial court having failed to exercise the said jurisdiction, the order is revisable.
5. Now coming to the merits of the revision, we find that the plaintiff wanted to amend the plaint in view of the office note and an application was moved on 11-11- 1983 for adjournment on the ground of illness of his Advocate. The learned trial Court rejected the application for time and also rejected the plaint for non-payment of deficit court-fee. In these circumstances, we (5) C.R.No.61/2015 (Pravesh Pathak & Others Vs. Smt. Shakuntala Sharma and others) feel that an opportunity should have been given to the plaintiff to pay the deficit court- fee. The cause shown in the application for restoration, therefore, appears to us as just and sufficient for invoking the jurisdiction of the court to restore the suit in the ends of justice.
6. We, therefore, set aside the impugned order and restore the suit and direct that a firm date be fixed for payment of deficit court fee and the suit be proceeded from that stage".
Learned counsel submits that the aforesaid judgment has been followed by this Court in Ajab Singh's case wherein it is held that application under Section 151, CPC for restoration of suit is maintainable even though rejection of plaint amounts to a decree, which is appealable. It is further held that Section 151 is available to be applied to restore the suit rejected under Order 7 Rule 11 for non payment of Court fee. This Court also observed that the Code of Civil Procedure is hand made. The object is to do substantial justice. The technicalities should not be allowed to come in the way.
(6) C.R.No.61/2015(Pravesh Pathak & Others Vs. Smt. Shakuntala Sharma and others) It is submitted that the trial Court has failed to appreciate the principle of law laid down by the Orrisa High Court followed by this Court in Ajab Singh's case (Supra) and has failed to apply the law in right perspective while dealing with the subject matter at issue. According to him, the reasons assigned by the trial Court for rejection of the counter claim on the premise that as the Court fee has not been paid, therefore, the same cannot be taken on record, is contrary to the law laid down, as indicated above. It is submitted that true it is that in Ajab Singh's case, Court fee was paid, but that was not the consideration which weighed with the Court while ordering for restoration of the plaint dismissed under Order 7 Rule
11. Instead, this Court had found that powers under Section 151, CPC are wide enough to be invoked for restoration of suit dismissed under Order 7 Rule 11 for want of proper Court fee, though the order so passed is appealable.
Learned counsel further contends that this Court had dismissed W.P. No. 8556/12 for the reason that (7) C.R.No.61/2015 (Pravesh Pathak & Others Vs. Smt. Shakuntala Sharma and others) once the application for taking on record the counter claim has been rejected, permission for depositing the Court fee was rightly not granted by the Court. Therefore, in view of the aforesaid facts and circumstances, the trial Court erred having rejected the application for taking the counter claim on record for the reason that court fee has not been deposited. In fact the trial Court has acted contrary to the judgment of the writ Court. Besides, the principles of law laid down by the Orrisa High Court and followed by this Court in Ajab Singh's case have not been followed by the trial Court.
With the aforesaid submissions, it is prayed that the impugned order deserves to be set aside.
Per contra learned counsel for the respondents submits that the trial Court has not committed any illegality while passing the order impugned. The trial Court was fully justified having refused to accept the counter claim on record in absence of deposit of Court fee.
Having heard counsel for the parties, upon (8) C.R.No.61/2015 (Pravesh Pathak & Others Vs. Smt. Shakuntala Sharma and others) perusal of the order impugned, there is substantial force in submissions advanced by learned counsel for the petitioner. In the opinion of this Court, the trial Court has not appreciated the principle of law reiterated in Ajab Singh's case (Supra) and instead justified its order by referring to the facts of Ajab Singh's case. That was not the direction issued by this Court while deciding C.R No.1/15. The law, as laid down in Padmalaya Panda Vs. Masinath Mohanty (Supra) by the Orrisa High Court and followed by this Court in Ajab Singh's case (Supra) is to the effect that an application under Section 151, CPC for restoration of suit is maintainable even though the rejection of plaint amounts to a decree, which is appealable. Further, Section 151 is also available to be applied to restore the suit rejected under Order 7 Rule 11, CPC for non payment of Court fee.
Justification for rejection of application for taking on record the counter claim to the effect that as the Court fee has not been paid, the said application cannot be considered, is fallacious. The Court fee can (9) C.R.No.61/2015 (Pravesh Pathak & Others Vs. Smt. Shakuntala Sharma and others) only be deposited if the counter claim is taken on record. This is what precisely has been held by the Orrisa High Court Padmalaya Panda Vs. Masinath Mohanty (Supra) in paragraph 6 in the context of rejection of plaint.
In view of the aforesaid, the impugned order is set aside. The trial Court is directed to first consider the application for taking on record the counter claim and thereafter fix a date for deposit of Court fee.
(Rohit Arya)
(and) Judge