Pravesh Pathak vs Shakultala Sharma

Sujoy Paul, J.—This petition is filed under Article 227 of the Constitution impugning the order dated 20.09.2012, whereby the application filed by the petitioners u/s 149 and 151 read with Order 7 Rule 11 C.P.C. (Annexure P/3) is rejected by the court below.

Brief facts necessary for adjudication of this matter are as under:-

The plaintiff/respondent preferred the instant Civil Suit No. 89-A/2009 before the IX Additional District Judge, Gwalior. The suit was filed for declaration and permanent injunction. The defendants No. 2 to 6/present petitioners filed a counter claim on 20.05.2011. The defendants No. 2 to 6 were required to deposit the court fees by 04.07.2011. The defendants did not pay the said court fees till that date and instead preferred an application for extension of time to pay the court fees. The Court below accepted the said prayer and permitted the said defendant to pay the court fees by 27.07.2011. On 27.07.2011 the said defendants preferred another application under Order 7 Rule 11 C.P.C. seeking further time to deposit the said court fees. The parties were heard on this application. The matter was fixed by the court below on 13.12.2011 to hear the parties on subsequent application preferred under Order 7 Rule 11 C.P.C. The Court below disallowed the further prayer and accordingly rejected the counter claim.

Shri D.D. Bansal, learned counsel for the petitioner submits that in view of 2000(1) MPWN 124 (Ajab Singh Vs. Amar Singh) permission should have been granted. He relied on Padmalaya Panda Vs. Masinath Mohanty, also in this regard. Lastly, reliance is placed on Suraj Bhan Gupta Vs. Union of India and Others,

The prayer is opposed by Shri M.L. Sharma and Shri Kamal S. Rochlani, Advocate for the respondents No. 1 to 4 and respondent No. 5 respectively.

I have heard learned counsel of the parties and perused the record.

In Ajab Singh (supra) this Court followed the Division Bench judgment of Orissa High Court delivered in the case of Padmalaya Panda (Supra). This Court held that application u/s 151 of C.P.C. for restoration of suit is maintainable, even though rejection of plaint amounts to a decree which is appealable. Bone of contention of Shri Bansal is based on this proposition. The court below rejected the application mainly on the ground that from 04.07.2011 to 17.01.2012 ample opportunities were granted to the petitioners to pay the court fees. They did not utilize even the last opportunity granted by the court below. Resultantly, by order dated 17.01.2012 counter claim was rejected. The court below in no uncertain terms made it clear that this order dated 17.01.2012 whereby counter claim is rejected, has attained finality. In absence of challenge to it before appropriate forum, there is no question of granting any further time to the petitioners.

The core issue is whether this decision of court below is liable to be interfered with? During the course of argument, it is not disputed by Shri Bansal that the order dated 17.01.2012 whereby counter claim was rejected, has attained finality. If the prayer made in application Annexure P/3 is examined it will be clear that relief prayed there in was for restoration of suit or for recalling of the order dated 17.01.2012. The relief claimed was that additional time/extension of time be granted to pay the court fees. In the opinion of this court, the court below has rightly held that once counter claim is already rejected, no further time can be extended. There is no legal infirmity in the order which warrants interference by this court under Article 227 of the Constitution.

In the light of aforesaid prayer made in application (Annexure P/3 and in the light of fact that counter claim already stood rejected on 17.01.2012 and that order has attained finality, no illegality can be found in the order impugned. The judgment in Ajab Singh (Supra) was based on the fact where the application for restoration of suit was filed. In the present case, the application which has been rejected by the impugned order, is not an application for restoration of the suit. Scope of interference under Article 227 of the Constitution is limited. In absence of any manifest procedural impropriety or palpable perversity, no interference is warranted. Another view is possible is also not a ground for interference. Even an erroneous order cannot be interfered with on mere asking or on a drop of hat. This view is taken in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, I find no ingredient on which interference can be made in this petition.

Petition fails and is hereby dismissed. No costs.