Madhya Pradesh High Court: Dwarka Dhish Bansal, J. allowed a civil revision under Section 115 of CPC against the order rejecting application filed under Section 151 of CPC holding that the same was not maintainable.
Order sheet of the trial Court showed that respondent 2 was not present when the suit was dismissed for want of payment of requisite Court fee, therefore, in view of order 41 Rule 14 (4) of CPC service of notice on her is not necessary. Counsel for the applicant submitted that he instituted a suit for specific performance of agreement of sale, on which Court fee of Rs.1,25,000/- (Rs One Lakh Twenty Five Thousand) was required to be paid but due to non-payment of requisite Court fee the suit was dismissed. He submitted that the applicant instead of filing First Appeal against the order filed an application under Section 151 of CPC with a prayer to restore the Civil Suit and to permit the plaintiff to pay the court fee.
The Court considered the judgment relied on by the Counsel for the applicant Ajab Singh v. Amar Singh, 2000 (1) MPWN 77 wherein the decision in the case of Padmalaya Panda v. Masinath Mohanty AIR 1990 Orissa 102 (DB) was considered, which has also been relied on in the case of Pravesh Pathak v. Shakuntala Sharma, 2016 (1) MPLJ 358 and also in the case of Jagdeesh v. Narayan decided on 22-2-2018 in M.P.No.1132 of 2017, whereby the application under Section 151 of CPC was found to be maintainable despite the fact that order allowing the application under Order 7 Rule 11 of CPC is appealable like a decree under Section 96 of CPC.
The Court was of the opinion that Trial Court has not carefully considered both the decisions relied on by the Counsel thus the impugned order is not sustainable. Trial was directed to restore the civil suit.[Anil Kumar Jain v. Maniram Singraha, 2022 SCC OnLine MP 971, decided on 11-05-2022]
For applicant: Mr Sanjay Kumar Jain
For respondent: Mr Sidharth Sharma, Mr R.P. Khare