Mukerji, J.:— This is an application in revision against an order of the learned Civil Judge granting time to the plaintiff to make good the deficiency in court-fees after the plaint had been rejected under Order 7, Rule 11(c) of the Code of Civil Procedure on the ground that the plaint had been insufficiently stamped.
2. It is necessary to state a few dates and a few facts in order to appreciate the point that arises for our consideration in this application in revision. On the 13th of Feb., 1950 a suit was filed on the foot of a mortgage deed. There was report by ithe Stamp Reporter in respect of some deficiency in regard to Court fees. Time in the first instance was granted by the court to make good the deficiency upto the 16th February, 1950. The deficiency was not made good, but an application for further time was made on behalf of the plaintiff. Time was granted.
3. It is not necessary to mention in detail the various occasions on which time was granted to the plaintiff to make good the deficiency, for we think it sufficient for our purposes to state that the plaintiff was granted several opportunities to make good the deficiency. We may further mention that the plaintiff did not, however, remain inactive completely, for he did pay into court various sums in court-fees towards the deficiency. This showed that the plaintiff's inability was not feigned or that the plaintiff's effort to get more time was made mala fide. On the 24th of July, 1950 the court made an order granting some time to the plaintiff and in that very order it said that the plaintiff was not to be allowed any further opportunity to make good the deficiency. The deficiency had to be under this order, made good by the 9th of August, 1950. On that date the plaintiff apparently paid Rs. 200/- in court-fees and was allowed fifteen days more time to pay up the balance. The plaintiff was unable to make good the deficiency of the balance and he, therefore, made an application praying for extension of time, chiefly on the ground, that he was seriously III and, therefore, he could not make arrangements in regard to the balance of the court-fees due from him. The court rejected the plaintiff's prayer. In the order refusing time the court made no reference to whether or not it believed the plaintiff's case that he was III and his inability to pay the Court fees was due to that fact. On the 25th of August, 1950, a formal order of rejection in respect of the plaint was made under Order 7, Rule 11(C) of the Code. Subsequently, the plaintiff made an application for reviewing the order of rejection of the plaint. That application for review was also rejected on the 28th of September, 1950. Subsequently, on the 31st of October, 1950 the plaintiff made an application to the court to reconsider in effect the order which it had made earlier refusing to extend time for the payment of the court-fees to the plaintiff. The plaintiff stated in an affidavit that he was seriously III with typhoid and he supported his contention by producing three medical certificates. At the earlier stage when this question of plaintiff's illness incidentally came up for consideration before the court there was before the court no material on which the plaintiff's contention could find support, that is to say, there were no medical certificates, but this time there were before the court the medical certificates. The court considered this application of the plaintiff and came to the conclusion that the plaintiff's allegation that he was suffering from typhoid was right and further that his inability to pay the requisite court-fees was due to his illness. The court, therefore, recalled its own order of rejecting the plaint which it had made on the 25th of August, 1950. The court granted the plaintiff three days time to make good the deficiency, for the plaintiff had said that in spite of his illness lie had made a desperate effort to collect the balance and he was prepared to pay the balance within a very short time. The order rejecting the plaint was recalled and the court directed the suit to be put back in its place in the register of suits and granted the plaintiff, as we have said, three days time to make good the deficiency. The deficiency was made good within this time. This application in revision is directed against the aforementioned order of the court.
4. The contention put forward by counsel for the applicants is that the court had no jurisdiction to set aside the order of rejection which had been made by it on the 25th of August, 1950 and which had been reiterated in its order of the 28th of September, 1950. It was further contended that the court had no jurisdiction, also, after the rejection of the plaint to grant the plaintiff time to make good the deficiency.
5. It cannot, in our opinion, be said that the court had no jurisdiction to recall an order which it had made earlier in the suit. A court always has power to recall an order which had the effect of perpetrating an injustice on a party. The order which was recalled in this particular case was based on an earlier order, namely, the order refusing to grant further time to the plaintiff to make good the deficiency. That order was made on the assumption that the plaintiff's illness was not genuine. It was open to the court, in our view, to reconsider the position when material was placed before it which showed clearly that the contention of the plaintiff that he was ill was substantially true. The court, therefore first recalled its order refusing to grant time to the plaintiff to make good the deficiency because that order had been made in the absence of materials on the record, materials which were subsequently put before the court. Once that order was withdrawn by the court then the order rejecting the plaint automatically fell through and therefore, there was really no question of the court not having the power to review the order in regard to the rejection of the plaint or to vacate that order after it had made its order refusing to do so on the 28th of September, 1950.
6. It has been held in this Court that an order of rejection of a plaint can be set aside under the provisions of Sec. 151 of the Code of Civil Procedure. This has been so held by Allsop, J., in Anant Prasad Singh v. Chaunnu Tewari A.I.R 1939 All. 452.. Allsop, J. for his view relied on the case of Ramnath Misir v. Deota Man Misir alias Mannu Misir Civil Revision No. 367 of 1936. decided by Sulaiman, C.J and Harries, J., on the 18th of August 1937. It is no doubt true that the Calcutta High Court in some cases has taken the view that a court had no jurisdiction under Sec. 151 to restore a plaint which had been rejected under Order 7, Rule 11, C.P.C We do not consider it desirable to enter into the question whether the view taken by the Calcutta High Court was the right view, for we prefer to follow the view taken in this Court.
7. There is yet another ground why we felt inclined not to interfere with the order against which this revision has been filed. Our powers of revision are discretionary. It has been held practically in every court in India that the power should not be exercised in a case where the exercise of the power was likely to cause injustice to a party. If we were to exercise our discretion and interfere in this case, then the position would be that the plaintiff would be out of court and he would have no opportunity to have his claim investigated in respect of the mortgage that was executed in his favour even though he has now paid the entire court fees. In this view of the matter also we think this revision should fail.
8. In the result, we see no force in this application which we accordingly dismiss, but under the circumstances of the case we make no order as to the costs. The stay order is discharged.
9. Application dismissed.