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Case Number

Civil Revision no. 173 of 1924, from an order of Babu R.K Ghosh, Sub-ordinate Judge, Shahabad, dated the 30th January, 1924,Civil Rev. No. 173 of 1924

Attorney(S)

S.P Varma (with him Sambhu Saran), for the petitioner.
Dhanindra Nath Varma, for the opposite party.

Judges

Jwala Prasad
Kulwant Sahay, JJ.

Acts

148, 149, 151, Order XVII, rule 1, read with section 114,
section 2 of the Code of Civil Procedure.
provision in Order VII, rule 11,
sections 151, 149, 148 and 147

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Smart Summary

Judgment Summary — Jwala Prasad, J. (with Kulwant Sahay, J. concurring)

Factual and Procedural Background

The plaintiff instituted a suit in the Sub-ordinate Court of Shahabad. The plaint was rejected because the required court-fee was insufficiently stamped and the deficit was not paid within the time fixed by the Court. The plaintiff asserts that he paid the deficit court-fee to his pleader, who entrusted the money to his clerk for deposit in Court. The clerk misappropriated the money and, by filing false applications for time to pay, led the Court to reject the plaint. Upon learning of the dismissal and the clerk's conduct, the plaintiff applied to the Court that had rejected the plaint for revocation of its order and restoration of the suit to the original file.

The Sub-ordinate Court treated the matter as a simple default by the plaintiff, holding that any laches of the pleader's clerk amounted to the plaintiff's laches; on that basis the Court below refused the plaintiff's application. The present opinion reviews that decision and addresses which provision(s) of the Civil Procedure Code (CPC) are applicable to grant relief.

Legal Issues Presented

Whether the plaintiff's application to set aside the order rejecting the plaint and to restore the suit can be entertained under section 151 (inherent powers) of the Code of Civil Procedure, or under Order XLVII, rule 1 (review), or under other provisions (notably sections 148, 149, 151, Order XVII rule 1 read with section 114, and provisions relating to appeals from decrees).
Whether an order rejecting a plaint (under Order VII, rule 11 for insufficiency of court-fee) is, for practical purposes, appealable and whether an appeal would be an effective remedy for a plaintiff alleging fraud by a pleader's clerk.
Whether the Court can extend the time to deposit court-fee (and thereby permit deposit of the deficit) under sections 148 and 149 of the Code despite the passing of the order rejecting the plaint.
Whether, on the merits, the plaintiff is entitled to relief (set aside of the dismissal and restoration of the suit) where the deficit court-fee was paid to a pleader's clerk who misappropriated it.
Whether the conduct of the pleader's clerk warrants investigation and further proceedings for offences such as cheating and misappropriation.

Arguments of the Parties

Plaintiff's Position

The plaintiff paid the deficit court-fee to his pleader, who handed it to his clerk to deposit in Court.
The clerk misappropriated the money and filed false applications for time to pay, causing the plaint to be rejected.
Because the payment was made to a properly constituted agent (the pleader or his clerk, an officer of the Court under the Legal Practitioners Act and High Court rules), the plaintiff believed the money had been deposited and should not be penalised for the clerk's deceit.
The plaintiff sought revocation of the order rejecting the plaint and restoration of the suit rather than pursuing an appeal, since an appeal would likely result only in dismissal and would not address the clerk's fraud.

Sub-ordinate Court / Respondent's Position

The Court below treated the matter as a simple case of default by the plaintiff and held that the laches of the pleader's clerk amounted to the laches of the plaintiff.
The Sub-ordinate Judge concluded the plaintiff's application did not fit the review provision (Order XLVII, rule 1) and therefore refused relief under review; the Judge also considered that the case did not fall under other provisions relied upon by the plaintiff.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rameshwar Mahton v. Lala Dwarka Prasad	That a Court which wrongly treats an application under Order XLVII, rule 1 as one under section 151 and sets aside an order of dismissal under inherent powers may not have its order vitiated by that irregularity (Das and Ross, JJ.).	The court noted the observation in that case as partly applicable and used it to support the conclusion that the plaintiff was not out of Court and could have his dismissal set aside whether the application is treated as under section 151, 149, 148, 147 or Order XLVII, rule 1.

Court's Reasoning and Analysis

The court proceeded by identifying and analysing the statutory provisions it considered relevant: sections 148, 149, 151, Order XVII, rule 1 read with section 114, Order VII, rule 11, the chapter relating to appeals from decrees, and section 2 (definition of "decree"). The analysis followed these key steps:

Characterisation of the order rejecting the plaint: The court accepted that an order rejecting a plaint is technically a "decree" under section 2 and therefore prima facie appealable.
Practical availability of appeal: The court explained that although the order is technically appealable, an appeal would be impractical and unlikely to provide relief where the plaintiff's grievance is fraudulent conduct by the pleader's clerk. If placed before an appellate court, the likely result would be dismissal (since Order VII, rule 11 requires rejection when the court-fee deficiency is not made up), so the plaintiff's reasonable response was to apply to the same Court to set aside its order.
Choice of remedy under the Code: The court discussed whether the application should be treated as a review under Order XLVII, rule 1, or as invoking the Court's inherent powers under section 151, or under sections 148 and 149 (extending time to deposit court-fee), or some combination. The court observed that powers under section 151 are wide and are to be applied with caution where a specific provision of the Code is available; nevertheless, where there is doubt or difficulty in applying other provisions, section 151 may be invoked.
Application of sections 148 and 149: The court noted that the Court has the power to extend the time to deposit court-fee under sections 148 and 149, and that the plaintiff's substantive request was effectively for permission to deposit the deficit court-fee (i.e., an extension of time).
Substance over form: The court emphasised examining the substance of the petition rather than its label (i.e., whether the application was presented as one under section 151 or Order XLVII). The court accepted that legal advisers may have framed the application under section 151 because of difficulty in finding precise statutory provision, but the substance disclosed the circumstances (payment to pleader's agent and misappropriation by the clerk) that warranted relief.
Reliance on evidence: The court relied on unimpeachable evidence of the pleader, Babu Harnandan Prasad, that the plaintiff paid the clerk and that the clerk was entrusted to deposit the money but misappropriated it. The court treated the pleader and his clerk as officers/agents of the Court under the Legal Practitioners Act and High Court rules, placing responsibility for deposit on them once the plaintiff paid.
Application of precedent: The court referred to Rameshwar Mahton v. Lala Dwarka Prasad to show that irregular classification of the nature of an application (review vs. inherent powers) did not necessarily vitiate relief where the substantive matter justified it.
Conclusion of analysis: On the combined view of the statute, the practical ineffectiveness of an appeal, the remedial scope of sections 148 and 149, and the evidence of misappropriation by the clerk, the court concluded that the plaintiff should be granted relief by vacating the order rejecting the plaint and restoring the suit, conditioned on payment of the deficit court-fee within a specified time.

Holding and Implications

Holding: Application allowed. The court vacated the order rejecting the plaint and ordered that the suit be restored to its original file, provided the plaintiff pays the deficit court-fee within three weeks of notice of this order to him by the Court below.

Additional directed relief and consequences:

The court accepted the plaintiff's entitlement to relief on the merits because the deficit court-fee had been paid to the pleader (through his clerk) and the plaintiff should not be penalised for the clerk's misappropriation.
The court ordered an investigation into the conduct of the pleader's clerk, Babu Badri Prasad, and directed that notice issue to him to show cause why he should not be dealt with for offences of cheating and misappropriation and for misconduct as a pleader's clerk in connection with the deposit of the deficit court-fee in Rent Suit No. 2 of 1923.
The opposite party's counsel was heard, but the court declined to delay the matter by formally requiring a show cause from the opposite party before vacating the order below.

Implications for precedent and parties: The decision directly restores procedural rights to the plaintiff (vacatur of dismissal and restoration of the suit upon payment of the deficit court-fee) and initiates proceedings against the clerk for alleged offences. The opinion does not announce the creation of a new legal precedent beyond applying existing provisions and the cited authority; it applies the Code's provisions (including sections 148, 149, 151 and review provisions) to the particular facts to provide a remedy where the plaintiff was defrauded by the pleader's clerk.

"Application allowed." — Jwala Prasad, J. (Kulwant Sahay, J. agreed.)

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Adit Prasad Singh v. Ramharakh Ahir

Jwala Prasad, J.:— We have heard both parties. The case appears to be a very serious one involving a serious misdemeanour and misbehaviour on the part of a clerk of a pleader in the Sub-ordinate Court of Shahabad.

The pleader's evidence clearly establishes the plaintiff's case that the deficit court-fee demanded by the Court was paid by the plaintiff to the pleader who handed it to his clerk to put in Court. The clerk misappropriated the money and filed bogus applications for time to pay the deficit court-fee with the result that the Court, being tired of such applications, ultimately rejected the plaint; the plaintiff coming to know of the result of the suit and the deceitful conduct of the clerk filed an application in Court for revocation of the order rejecting the plaint and for restoration of the suit to its original file.

The Court below seems to have treated this case as a very simple case of default on the part of the plaintiff, holding that the laches on the part of the pleader's clerk amount to his own laches and that so far as this case is concerned, he is out of Court. I fail to appreciate the contention of the Court below. I am also surprised at the simplicity exhibited by the Court in dealing with such a serious case as an ordinary case of review leaving the aggrieved party to seek his remedy by a suit for compensation against the pleader's clerk, who, perhaps, is a pauper or has absconded. The result of the order of the Court below is to leave the plaintiff practically without any remedy. The Court below has tried to discuss the several provisions in the Code of Civil Procedure bearing on the subject and one by one he has disposed of them by holding that the plaintiff's application does not come under any of them.

It seems to me that the case is of such a flagrant nature that it is impossible to conceive that the Code would leave the case without providing any remedy. If the Court below has failed to find out the pertinent provision in the Code, it must have struck him that the Code is defective; but I cannot impute that lack of knowledge or experience on the part of the legislature and I am fully convinced that the case comes under the purview of the Code. The sections relevant to the point are 148, 149, 151, Order XVII, rule 1, read with section 114, and the chapter relating to appeals from decrees

The aforesaid provisions of the Code often overlap each other and therefore present sometimes difficulty in applying them to the facts of the particular case. The order rejecting a plaint amounts to a decree under the definition of the term in section 2 of the Code of Civil Procedure. If the order in question is a decree, it is appealable, and one is apt to ask the question why the plaintiff did not appeal treating the order as a decree. If the question is asked one would find it difficult to answer. Admittedly the plaint was insufficiently stamped and the deficiency had to be made up. Admittedly the deficit court-fee was not paid within the time fixed by the Court, and in such circumstances the imperative provision in Order VII, rule 11, must apply and the plaint must be rejected. Present this case before a Court of appeal, and the only order which the party could expect is an order of dismissal. Knowing this why would the plaintiff go to the appellate Court? His case is that the Court acted fully within the powers vested in it but that the pleader's clerk, who is an officer of the Court, behind the back of the Court and that of the party, acted in a deceitful and dishonest manner and he withheld the payment of the money handed over to him in time to be deposited in Court. The only thing that will strike the plaintiff in such a position is to represent the matter to the Court itself which passed the decree. Therefore, although the order may be technically appealable, it is not practically appealable. Now, how to approach the Court? Ask the Court to review its order under Order XLVII, rule 1, or under the inherent powers of the Court, contained in sections 148 to 151 referred to above. Then the difficulty arises in finding out proper and sufficient grounds for a petition under Order XLVII, rule 1, and, therefore, the legal advisers of the party described the application under the provisions which are supposed to vest the Court with large and unlimited powers. This is the reason for putting the application under section 151. It is not the party which has put it but the legal adviser of the party. Therefore we have to look to the substance of the petition and the petition discloses the circumstance under which the order rejecting the plaint was passed and the reason for asking the Court to exercise its powers to grant a relief to the plaintiff. It has been pointed out in several cases that the powers vested in section 151 are indefinite, undetermined, unlimited and large, and it is difficult to define and describe such powers. The circumstances of each case will show whether section 151 should or should not apply. There are also authorities which, in some way, limit the scope of section 151 when there is some other provision in the Code which would give relief to the deserving party. Upon this ground it is often urged that when there is a provision for review and when the case can come under Order XLVII, rule 1, or can be taken in appeal, section 151 should not apply. I myself would be bath to exercise the power under section 151 when a party can come under any other provision of the Code. If the statute says that a thing should not be done, section 151 cannot vest the Court with the power to direct that it should be done; but when and where there is doubt and difficulty in applying the other provisions of the Code to the facts of a particular case I do not know why section 151 should not apply. It is in these circumstances that, where there is a doubt or dispute as regards there being any other provision in the Code, section 151 should be invoked. Personally I would apply section 151 to the facts of the present case although, technically speaking, the order rejecting the plaint is a decree. It is possible that Order XLVII, rule 1, also applies to the case. The section clearly gives an option to the party to elect to appeal or apply for review. In this case the party did not appeal but applied for review of judgment.

The plaintiff asks for permission to deposit the deficit court-fee. Virtually, therefore, the plaintiff asked for extending the time to pay the court-fee. The Court has power to extend the time to deposit the court-fee, even though the time originally fixed has expired, under sections 148 and 149.

The only difficulty created is by the final order rejecting the plaint. If that order had not been passed, there certainly would have been he difficulty. In the circumstances I would not let that formal order stand in the way of giving relief to the plaintiff. The Court below held that Order XLVII, rule 1, does not apply and upon that view did not demand that the plaintiff should pay the deficit court-fee for review. The Sub-ordinate Judge treated this case as one not coming under the review section of the Code. Therefore there was no fault of the plaintiff if the court-fee for review was not paid.

In the case of Rameshwar Mahton v. Lala Dwarka Prasad where a Court wrongly treated an application under Order XLVII, rule 1, as one under section 151 and set aside an order of dismissal of a suit under its inherent powers, Das and Ross, J.J, held that the order of the Court below was not vitiated by the aforesaid irregularity. The observation in that case to some extent applies in the present case. Therefore I would hold that the plaintiff was not out of Court and he was fully entitled to ask the Court below to set aside its decree and to restore the case to its original file whether the application be deemed as one under sections 151, 149, 148 and 147 or under Order XLVII, rule 1.

The question is whether the plaintiff was entitled on merits to have the decree set aside. The circumstances stated will clearly show that this point need not be laboured hard for the plaintiff did pay the court-fee to the properly constituted agent who also is an officer of the Court and upon that payment the plaintiff was entitled to be saved from any further harassment due to non-payment of the court-fee.

I would, therefore, allow this application, vacate the order rejecting the plaint and restore the case to its original file.

The opposite party is represented by a learned vakil of this Court whom I have heard on all the points concerned, and I do not think that the case should be delayed in any way by formally asking the opposite party to show cause why the order of the Court below should not be vacated. The case rests entirely upon the unimpeachable evidence of the pleader, Babu Harnandan Prasad, whose clerk, Babu Badri Prasad, withheld the money paid by the plaintiff to be deposited in Court and misappropriated the same. The said pleader proves that the money was actually paid by the plaintiff and that the clerk was entrusted with the work of depositing it in Court, but that he misappropriated it and on false pretext took adjournment, after adjournment, and the case was ultimately dismissed for non-payment of the court-fee. The plaintiff all along believed that the money was actually deposited in Court. After having paid the money to the duly constituted agent and an officer of the Court, under the Legal Practitioners Act and the rules of the High Court, whose duty it was to deposit in the Court, the responsibility of the plaintiff ceased until he was informed of the default made by the pleader or his clerk. It is no solace to the plaintiff that he can proceed against the pleader's clerk in the civil or criminal Court. The case was dismissed on account of certain circumstances over which he had no control and for no fault of his. The order of dismissal is set aside and the suit will be restored to its original number on the plaintiff paying the deficit court-fee within three weeks of the notice of this order given to him by the Court below.

The case, however, should not rest here. An investigation into the conduct of Babu Badri Prasad is necessary.

Let notice issue upon Badri Prasad, clerk of Babu Harnandan grasad, Pleader. Arrah, to show cause why he should not be properly dealt with for having committed the offences of cheating and misappropriation and for misconduct as a pleader's clerk in connection with the deposit of the deficit court-fee in Rent Suit no. 2 of 1923.

Kulwant Sahay, J.:— I agree.

Application allowed.

Adit Prasad Singh v. Ramharakh Ahir

Judgment Summary — Jwala Prasad, J. (with Kulwant Sahay, J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Position

Sub-ordinate Court / Respondent's Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Adit Prasad Singh v. Ramharakh Ahir

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