(Delivered by Horwill, J.)
The respondent filed a suit on a promissory note on the last day of limitation (11th January 1945) with a nominal Court-fee, and with his plaint filed an application for fourteen days time to pay the additional Court-fee. That application was granted. On 24th January 1945, the day before that extended period elapsed, the respondent filed I.A No. 41 of 1945 asking for a further ten days time. That application was rejected on 25th January 1945, the following day. The plaint however remained on file until 30th January 1945, when the learned Subordinate Judge passed the order:
“Time extended till 25th January 1945 as per order on I.A No. 13 of 1945 dated 11th, January 1945 for payment of deficit Court-fee. On 24th January 1945, the plaint was re-presented with a Court-fee of Rs. 50 and a petition was also filed for further time of ten days. The petition was numbered as I.A No. 41 of 1945. Court-fee was not paid. I.A No. 41 of 1945 for extension of time was rejected on 25th January 1945. Hence plaint is deemed rejected as on 25th January 1945.”
Before this order had been passed, on the 29th January, the respondent filed the two applications with which we are now concerned; one was for a review of the order refusing to extend the time and the other was a petition to extend the time. The facts alleged in those petitions were not controverted in the counter. They are to the effect that in order to comply with the orders of Court to pay the deficit Court fee by 25th January 1945, he had sent his sons to raise the money. They had in fact obtained the money; but one of them became seriously ill with typhoid and on 25th January 1945, the date on which the money should have been deposited in Court, the son died. Because of the seriousness of his illness, the other brother took his sick brother home on the previous day instead of taking the money to the Court to pay to his vakil, with the result that instead of depositing the money into Court, which he could have done within the time allowed, he took it home. The learned Judge—very rightly in our opinion—considered this a sufficient cause for review and then passed the order appealed against, enlarging the time and directing the plaintiff to pay Court-fee by the 26th June 1945.
An argument has been based on the circumstance that since the application to extend the time was taken on 25th January 1945, there was no plaint with regard to which an application for extension of time could be made on 29th January 1945. This is clearly wrong; because O. 7, R. 12 Civil Procedure Code requires the Court to pass an order when it rejects the plaint, giving reasons for doing so. That order was not passed until the 30th; so that when the money was tendered and the application made on the 29th, the plaint was still in Court. The learned Subordinate Judge was wrong in his order of the 30th January in thinking that the plaint became automatically rejected upon failure to pay the Court-fee within the time allowed.
It was then argued that the review petition ought not to have been granted; because before the order on I.A No. 41 of 1945 had been passed, the plaint had already been rejected; and that it would be therefore to no purpose to review the order in I.A No. 41 of 1945. It is further argued that it was incumbent on the respondent to file an appeal against the order rejecting the plaint. Since an order had been passed on the review application setting aside the order rejecting the application to extend the time it would follow that the consequential order passed on 30th January 1945 rejecting the plaint would be automatically set aside upon the setting aside of the order of 25th January 1945. No authority has been cited to us which suggests that when setting aside an earlier order it is also necessary to set aside the consequential order. Moreover, if there were any substance in this technical objection by the appellant, it would suffice to point out that the respondent might well argue that there was no order passed rejecting the plaint; for, as we have already said, the learned Judge seemed to think that the rejection of the plaint automatically followed upon the failure to pay Court-fee within the time allowed; and the order passed by him on 30th January did not say that he thereby rejected the plaint. He said that the plaint was to be deemed rejected as on 25th January 1945. In other words, he considered that the rejection of the plaint had already occurred and needed no further order on his part.
The appeal is dismissed with costs. The civil revision petition is also dismissed, but without costs,
N.R.R