Munshi Ahsan vs Shabbir Ahmad

Ram Surat Ram (Maurya), J.—Heard Sri Kamal Kumar Singh for the petitioner.

This petition has been filed against the order of District Judge dated 5.3.2016 by which delay in filing the appeal has been condoned and appeal has been admitted.

The argument of the counsel for the petitioner is that by the order dated 22.8.2003 the issue relating to valuation of suit as well as deficiency in court fees has been decided and it has been held that the valuation of the suit was 45,000/- and the plaintiff was directed to amend the plaint and supply the deficiency in court fees. Thereafter 13.11.2003 was the date fixed. On 13.11.2003, the plaintiff sought adjournment which was allowed and 8.1.2004 was fixed. On 8.1.2004 plaintiff did not appear before the trial court and the plaint was rejected under Order 7, Rule 11 CPC. He submits that rejection of the plaint under Order 7, Rule 11 CPC amounts to decree within the meaning of Section 2 (2) of Code of Civil Procedure 1908, therefore application under Order 9, Rule 9 CPC was not maintainable. The trial court after hearing the parties by the order dated 1.2.2014 rejected the application under Order 9, Rule 9 CPC. Against that order a time barred appeal has been filed in which by the impugned order delay has been condoned and appeal has been admitted, although the appeal is not maintainable. He relied upon the judgment of this Court in M/s Niwas Kandsari Udyog and others v. Canara Bank and others, 1998 All CJ, Page 1108.

A perusal of the aforesaid judgment shows that this Court found that although the application under Order 9, Rule 9 CPC is not maintainable but the order can be recalled by exercising powers under Section 151 CPC. Thus the powers for recall of the order was found with the trial court. Mentioning wrong section is immaterial.

In such circumstances, this Court is not inclined to interfere in the matter. Petition is dismissed.