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Judgment
Prakash Krishna,J.
Raising a short controversy, the present writ petition is at the instance of defendant of suit no. 619 of 2007.
It appears that the plaint of the said suit was deficintly stamped in court fee. After granting several opportunities, the trial court by the order dated 2022007 rejected the plaint being deficiently stamped. Thereafter, two applications dated 2832009 to recall the said order and to condone the delay if any in filing the restoration application were filed. The condonation of delay was sought for on the ground that the applicant is heart patient and his wife is suffering with cancer. Due to paucity of funds, the court fee could not be paid. It was further stated that the applicant was confined to bed from 1822007 to 832007. He contacted his counsel on 932007 and then he came to know that the suit has been dismissed for want of proper court fee on 2022007. The trial court by its judgment and order dated 2152007 condoned the delay and recalled the order dated 2022007. Meaning thereby, the suit was restored to its original number and court fee was paid and suit was registered by the order dated 1082007. Challenging the aforesaid two orders dated 2152007 and 1082007, the present writ petition has been filed.
Heard the learned counsel for the paties and perused the record.
Learned counsel for the petititioner submits that only remedy available to the plaintiff respondent was to institute a fresh suit as provided for under Order 7 Rule 13 CPC. In contra, Sri P.K. Singhal, learned counsel appearing for the plaintiff submits that in such situation, as held by this Court, the petitioner has got two remedies. Reliance was placed on the following decisions.
It has been held by this Court in Firm M/S Devesh KumarViresh Kumar, Aligarh and others Vs. 5th Additional District Judge, Aligarh and others, AIR 1981 Allahabad 15 that in such a situation, an application to restore the suit to its original number under Section 151 CPC is maintainable. More or less similar view has been tkaen in M/S Narain Agricultural Corporation and others Vs. Allahabad Bank, 1995 A.L.J.1213 and Ishwar Dayal and another Vs. Hill Top Finace Co. (Pvt.) Ltd., 1997(1) ARC 128.
In view of the above, I do not find any illegality in the impugned order. The court below was perfectly justified in condoning the delay in taking the court fee on record. No interference is called for under Article 226 of the Constitution of India. The petitioner is permitted to participate in the proceeding and mayfile the written statement if not already filed within a period of one month.
The writ petition is dismissed, but no order as to costs.