Smt. D.Leelavathi B.Sc., B.L.,

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE W.G.: AT ELURU.

Present: Smt.D.Leelavathi,

Principal District Judge.

Tuesday, the 6th day of October, 2015

APPEAL SUIT No.123/2014

Between:

Yenumula Venkata Nagasri Anjaneyulu

... Appellant/Plaintif

Vs.

1.Vagvala Kali Vara Prasad

2.Mamillapalli Gajalaxmi

3.Kethineedi Ramadevi

...Respondents/Defendants

On appeal preferred against the Decree and order dated 10.02.2014 in O.S.S.R.No.602/04.02.2014 on the file of Principal Senior

Civil Judge, Eluru and made:

Between:

Yenumula Venkata Nagasri Anjaneyulu ... Plaintif

Vs.

1.Vagvala Kali Vara Prasad

2.Mamillapalli Gajalaxmi

3.Kethineedi Ramadevi

... Defendants.

This appeal coming on 23.09.2015 before me in the presence of

Sri M.P.Acharya, learned advocate for appellant/Plaintif and Sri

Ch.Rajendra Prasad and Sri M.S.Gopala Krishna, learned advocates for 1st respondent/1st Defendant and of respondents 2 and 3 remained exparte; and upon perusing the material on record and the matter having stood over for consideration till this day, this court delivered the following:

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J U D G M E N T

This appeal is preferred by the appellant under Order 41 Rule 1 of

C.P.C., and under section 96 of C.P.C., against the order and decree

dated 10.02.2014 passed in O.S.S.R.No.602/04.02.2014 on the file of

Principal Senior Civil Judge, Eluru.

2.The appellant is the plaintif while the respondents are the defendants in O.S.S.R.No.602/04.02.2014 which was filed by the plaintif for recovery of money on a promissory note from the defendants who are legal heirs of the deceased Vagvala Ganapathirao.

3.The parties will be referred to as plaintif and defendants as arrayed in O.S.S.R.No.602/04.02.2014 for the sake of convenience and to avoid confusion.

4.The plaintif filed the suit for recovery of money on the basis of promissory note, on 04.02.2014 along with separate application praying the court to grant 10 days time for payment of court fee. As per orders in I.A.No.224/2014 in O.S.S.R.No.602, the trial court allowed the said petition by passing conditional order that the plaintif shall pay the court fee on or before 10.02.2014 failing which the petition shall stand dismissed. But the plaintif could not comply with the order. Therefore, the trial court dismissed the petition in I.A.No.224/2014 in

O.S.S.R.No.602 and consequently rejected the plaint on 10.02.2014 on the ground of non-compliance of conditional order. As against the order and decree dated 10.02.2014 passed in O.S.S.R.No.602, the appellant/plaintif preferred this appeal.

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5.The 1st respondent appeared through an advocate and contested the matter. The respondents 2 and 3 remained exparte, they did not choose to contest the matter.

6.During the pendency of the above appeal, the appellant/plaintif filed a petition in I.A.No.1742/2015 under section 151 of C.P.C., praying the court to receive additional grounds of appeal in the above appeal and the said petition was allowed and the additional grounds of appeal are received.

7.Heard the counsel for the appellant/plaintif and counsel for the 1st respondent. Both side counsel filed written arguments in respect of their respective parties, along with some photostat copies of decisions.

8.Now the point for consideration is,

Whether the order and decree dated 10.02.2014

passed in

O.S.S.R.No.602/04.02.2014 can be set aside as

prayed by appellant/plaintiff?

9.POINT:-

It is not in dispute that the plaintif filed the suit for recovery of money basing on a promissory note, on 04.02.2014 along with separate application praying the trial court to grant 10 days time for payment of court fee. The trial court granted only 6 days time by imposing condition to pay the same by 10.02.2014. But the plaintif could not comply with the conditional order. Therefore, the trial court dismissed the petition in I.A.No.224/2014 in O.S.S.R.No.602 on 10.02.2014 on the ground of non-payment of deficit court fee within the time granted, consequently the plaint was rejected. In view of the 4 dismissal of I.A.No.224/2014 in O.S.S.R.No.602 the plaintif preferred this appeal.

10.Now the question that arises for my consideration in this matter is whether it is a regular appeal or miscellaneous appeal that lies against the order passed in I.A.No.224/2014 dated 10.02.2014.

11.The learned counsel for the plaintif contended that the order passed by the trial court i.e., rejection of plaint is a “deemed decree” and not a “decree”. Therefore the appeal is maintainable under section 43(1) and section 96 of C.P.C. In support of his contention, he has relied upon a decision reported in 2011(4) ALT 418(F.B.) in a case between MOLUGU RAM REDDY AND OTHERS Vs. MOLUGU VITTAL

REDDY AND OTHERS, wherein the Full Bench of our Hon’ble High Court consisting of Hon’ble Sri Justice B.Prakasa Rao, Hon’ble Sri Justice

V.V.S.Rao and Hon’ble Sri Justice P.Durga Prasad held at Para-16, 17 and 25 as follows:

Para-16: Insofar as the remedy of appeal under Section 96 of the

Code of Civil Procedure is concerned, there cannot be any distinction between a judgment of the Court dismissing the suit after full trial or the order of the Court rejecting the plaint for any curable or non-curable defects mentioned under Order VII Rule 11.

In either case, the efect would be the same except that under

Rule 13 of Order VII, the rejection of the plaint shall not of its own preclude the plaintif from presenting fresh plaint in respect of the same cause of action, subject however to law of limitation, doctrine of ouster of jurisdiction or doctrine of res judicata. If the rejection is for any curable defect, the plaintif may move the 5

Court seeking time to rectify the defects especially those referred to in Order VII Rule 11 (b), (c), (e) or (f), and if the request is not accede to, it would be an order amounting to dismissal of the suit.

Para-17: Whether the suit is dismissed after full trial or whether the plaint is rejected either because there are non-curable defects or curable defects (which remain unrectified), the remedy of the plaintif is only to prefer an appeal under Section 96 of the Code of

Civil Procedure. There are mainly four reasons for this. First, reading of Section 2(9) with Sections 2(2) and 2(14), judgment of the Court rejecting the plaint under Order VII Rule 11 is a “deemed decree” not an “order” against which the remedy is by way an appeal under Section 96, Secondly, from reading of Section 104(1)(i) and Order XLIII(1) together it is irresistible that judgment or the order rejecting the plaint is not appealable by way of miscellaneous appeal, as is the case in appeals against orders.

Thirdly, Section 104(1)(i) read with Order XLIII(1)(a) provides a miscellaneous appeal only when “plaint is returned under Order

VII Rule 10” except when the procedure under Rule 10A of Order

VII was followed. Fourthly, the judgment of the Court rejecting the plaint not being one under Sections 35A, 91, 92 or 95, or an order under Section 94(a) read with 104(h). No miscellaneous appeal would lie, when a plaint is rejected under Order VII Rule 11. Thus, a judgment rejecting the plaint; not being an order appealable by way of miscellaneous appeal under any of the provisions as contemplated under Section 104 read with Order XLIII – is only appealable under Section 96. This view is well supported by a decision of the Privy Council, three judgments of the Supreme

Court as well as two Full Bench judgments of this Court and that of

Kerala High Court.

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Para-25: A Judgment rejecting a plaint is “decree” and is appealable under Section 96. A miscellaneous appeal against an order rejecting the plaint would not lie. There is a much consensus of judicial opinion that supports this conclusion. A plaintif, who is aggrieved by rejection of the plaint for any of the reasons as contemplated under order VII Rule 11(a) to (f), is entitled to file a regular appeal under Section 96, and a miscellaneous appeal under Section 104 read with Order XLIII Rule 1 is barred.

12.A reading of the decision stated supra, it is understood that the plaintif, who is aggrieved by rejection of the plaint for any of the reasons as contemplated under Order VII Rule 11(a) to (f), is entitled to file a regular appeal under section 96 of C.P.C., and a miscellaneous appeal under section 104 read with Order XLIII Rule 1 would not lie.

13.In MOHAMMED KANI ROWTHER Vs. HASAN ROWTHER

BULGHESE BEEVI, (1972 AIR (Ker) 56), Hon’ble Sri Justice

Krishnamoorthy Iyer speaking for the Full Bench of Kerala High Court reiterated the view that “an order rejecting a plaint under Order VII Rule 11 being a decree under section 2(2), the proper remedy of the Plaintif is to file an appeal and that a revision petition is not maintainable”. In

NEMICHAND Vs. EDWARD MILLS COMPANY LIMITED (1953 AIR

(SC) 28), a Constitution Bench of the Hon’ble Supreme Court while considering whether on memorandum of appeal presented to the High

Court, court fee was payable under section 7(iv)(c) or Article 17 of

Schedule II of the Court Fee Act, 1870, categorically held that, “an order rejecting a plaint is a decree as defined in Section 2 Sub-section (2) and 7 is appealable as such” and that, “when the plaint is rejected for non- payment of proper court fee only an appeal would lie against an order rejecting the plaint which results in dismissal of the suit. It was however observed that, “an appeal would not be proper remedy when the plaintif questions the interlocutory order with reference to the proper court fee passed by the trial Court”.

14.In the instant case, the plaintif preferred appeal on the rejection of plaint in O.S.S.R.No.602/04.02.2014 on the file of Principal

Senior Civil Judge, Eluru on the ground of non-payment of deficit court

fee within time granted, but no order was passed in I.A.No.224/2014 in

O.S.S.R.No.602/04.02.2014. In the light of the decisions stated above, it can be firmly stated that the appeal is maintainable.

15.The objection raised by the learned counsel for the 1st respondent is that the trial court rejected plaint in

O.S.S.R.No.602/04.02.2014 on the ground of non-payment of deficit court fee and since it was specifically confined to the trial stage there was no ground to claim deficit court fee at the appellate stage also.

16.The power under section 107 of C.P.C., is only part of its appellate jurisdiction and not original jurisdiction. In order to substantiate its contention, he has relied upon the following decisions:

(1) 2006(2) ALT Page 704, in a case between SIVISHI ASSOCIATES

AND OTHERS Vs. JAGADEESHWARI AGENCIES; (2) AIR 1993

SUPREME COURT 1241 in a case between MOHAMMAD MAHIBULLA

AND ANOTHER, APPELLANTS Vs. SETH CHAMAN LAL (DEAD) BY

L.Rs. AND OTHERS, RESPONDENTS.

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17.In a decision reported in 2006(2) ALT Page 704 wherein

Hon’ble Sri Justice C.V.Ramulu garu held that “power of court to grant

time for payment of deficit court fee under section 149 of C.P.C., is not absolute and the said power to be exercised judiciously and in exceptional cases for meeting the ends of justice and after recording reasons”. In the said decision unreasonable extension of time granted by the trial court by way of returning the plaint for complying with the payment of deficit court fee, therefore, his Lordship held that it cannot be said to be either exercise of power vested under section 149 of

C.P.C., as an absolute power or discretion vested in the interest of advancement of justice.

18.In the instant case the plaintif in the lower court filed the separate petition on 04.02.2014 along with plaint in I.A.No.224/2014 seeking 10 days time for payment of court fee for the reasons mentioned in the affidavit beyond his control. The said application duly received by the trial court and granted time till 10.02.2014 i.e., 6 days only. As the plaintif has not complied with the conditional order passed by the trial court for payment of the deficit court fee, the plaint was rejected. So, the plaintif had no chance to file a petition for extension of time in pursuance of the conditional order passed in I.A.No.224/2014 and consequential order is rejection of plaint, as such the plaintif is unable to file any petition for extension of time for payment of court fee by way of any petition under section 149 of C.P.C., I too agree with the proposition of law laid down in 2006(2) ALT Page-704, but the facts in that case are not matching with the facts of the case on hand.

Therefore, the said decision is no way helpful to the case of the 1st respondent.

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19.Coming to the another decision reported in AIR 1993

SUPREME COURT Page 1241 wherein the Hon’ble Supreme Court at

Para-5 held as follows:

“Reading these two provisions together and keeping fairness of procedure in view, we are inclined to agree with the counsel for the appellant that when the lower Appellate Court came to hold that the memorandum of appeal had not been sufficiently stamped, an opportunity should have been given by the Court to the appellant to make good the balance Court-fee within a time to be indicated and if there was failure to comply with the direction of the Court the memorandum of appeal could have been dismissed. This opportunity having not been given, we are of the view that the dismissal of the appeal was not appropriate.”

20.Section 107(2) of C.P.C., states that subject to limitation contained in the Code the powers of the appellate court shall be co- extensive with the powers and obligations conferred and imposed upon the outs of original jurisdiction in respect of suits filed before them. So, it is very clear that the general principle that the powers of the appellate court are co-terminus with those of the court of the first instance (trial court). So, it is understood that as the powers of the appellate or revisional authority unless stated otherwise in the co- terminus exclusive with those of powers of revisional authorities, so it could be that the appeal which is court of the first instance can be passed.

21.In the instant case it is the contention of the plaintif that the conditional order passed in I.A.No.224/2014 was not noticed by him due to separate Telangana struggle was prevailed in the entire Andhra

Pradesh and the advocates abstaining from the Courts and that he was at Karnataka by that time. He is also undertaking that he is ready to pay the deficit court fee as was payable on the plaint when the plaint 10 was rejected on the ground of non-payment of deficit court fee.

Therefore, I feel that the opportunity should be given to the plaintif to make good the balance court fee within a time to be indicated and if there is failure to comply with the direction of the court, the plaint could have been dismissed. If the appeal is allowed, no hardship will be caused to the 1st respondent because he shall be given opportunity to contest the suit in the trial court. If the appeal is not allowed, the petitioner will be put to irreparable loss and hardship. Even in the decision reported in AIR 1993 SUPREME COURT 1241 wherein the

Hon’ble Supreme Court observed that when the lower appellate court

came to hold that the memorandum of appeal had not been sufficiently stamped, an opportunity should have been given by the court to the appellant to make good the balance court fee within the time to be indicated and if there is failure to comply with the direction of the court, the memorandum of appeal could have been dismissed. So, in the light of the observation made by the Hon’ble Supreme Court, I am inclined to allow this appeal in order to give an opportunity to the plaintif to make good the balance court fee on or before 05.11.2015. Accordingly, the point is answered.

22.IN THE RESULT, the appeal is allowed setting aside the rejection order passed on 10.02.2014 by the learned Principal Senior

Civil Judge, Eluru in O.S.S.R. No.602/2014 dated 04.02.2014.

The appellant is hereby directed to pay the court fee in the court of Principal Senior Civil Judge, Eluru on or before 05.11.2015. On payment of requisite court fee within the stipulated time, the learned

Principal Senior Civil Judge, Eluru is directed to number the suit if it is

otherwise in order.

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Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me in open court, this the 6 th day of October, 2015.

Sd/- D.Leelavathi,

PRINCIPAL DISTRICT JUDGE,

WEST GODAVARI,

ELURU.

Copy to:

The Principal Senior Civil Judge, Eluru with L.C. Records.

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IA.1575/2014 filed under Rule 109-2 of Civil Rules of Practice is allowed. This matter is advanced to this

date. The advocate for appellants filed memo stating that the appellants are not pressing the C.M.A. without prejudice to their rights and contentions to take appropriate remedy available under law against the order and decree passed in IA.No.71/2014 in OS.No.347/2011 by the I Addl. Junior Civil

Judge, Eluru as the above CMA is not maintainable in view of Order 43 of CPC. The said memo is

recorded. In view of memo, the CMA is dismissed as not pressed without prejudice to appellants rights and contentions to take appropriate remedy available under law against the order and decree passed in

IA.NO.71/2014 in OS.347/2011 by the I Addl. Junior Civil Judge, Eluru. No costs.