JUDGMENT
P.K. Tripathy, J.
1. Plaintiff in Title Suit No. 29 of 1996 of the Court of Civil Judge (Sr. Division), Keonjhar has preferred this Civil Revision on rejection of the plaint under Order 7 Rule 11 (b) of the Code of Civil Procedure, 1908 (in short, ‘the Code’).
2. Though it is of less relevancy but the facts and circumstances involved in this case are noted in brief.
Plaintiff filed the suit for partition, inter alia, claiming for half share of the joint family property and intended that the sale transactions made by his father and Karta of the family in favour of Defendants 14 to 32 be declared null and void and inoperative as against his half interest. A fixed Court-fee was paid. Title Suit was taken up for hearing and after recording evidence and hearing argument when the suit was posted for judgment learned Civil Judge (Sr. Division) entertained a doubt regarding correctness of valuation made and the Court-fee paid on the plaint. In that context, learned Civil Judge (Sr. Division) provided an opportunity of hearing to the parties and on 3.4.2001 directed the plaintiff to correct the valuation and to pay the deficit Court-fee in accordance with the provisions under Section 7(iv)(c) of the Court-Fees Act. In that respect, time was granted till 9.4.2001 to do the needful. On 9.4.2001 plaintiff sought for time to challenge the said order in a Civil Revision. That application was rejected and because of non-payment of deficit Court fee the plaint was rejected under Order 7, Rule 11 (b) of the Code.
3. In the revision application petitioner has prayed to set aside the order passed on 3.4.2001 i.e. the direction issued by the trial Court to pay further Court-fee. Simultaneously, petitioner has also prayed to set aside the consequential order passed on 9.4.2001 i.e. the rejection of the plaint under Order 7, Rule 11 of the Code.
4. In course of hearing of the revision for its disposal at the stage of admission both the parties addressed the Court on the maintainability of the Civil Revision as well as on the merit.
5. Referring to Section 115 of the Code as amended by Act 46 of 1999, learned counsel appearing for different sets of opposite parties argued that the Civil Revision is not maintainable as against either of the aforesaid two orders passed on 3.4.2001 and 9.4.2001 inasmuch as if that order would have been passed in favour of the revision petitioner, then that could not have finally disposed of the suit or other proceeding. They also argued that when a decree followed on rejection of the plaint under Order 7 Rule 11 of the Code, therefore, the only remedy which is available to the plaintiff-petitioner is to prefer an appeal and not a Civil Revision. On the other hand, learned counsel for the plaintiff-petitioner argued that in view of the ratio propounded by this Court in the case of Baishab Padhan v. Parma Padhan and Anr., AIR 1964 Orissa 156; Padmalaya Panda v. Masinath Mohanty, AIR 1990 Orissa 102; and Durga Pharma Distributors, Hyderabad and Anr. v. Geoffrey Manners & Co. Ltd. and Ors., AIR 2000 Andhra Pradesh 242 not only a Civil Revision is maintainable as against rejection of the plaint under Order 7, Rule 11 of the Code but also such a Civil Revision should be duly considered for interfering with the order relating to payment of Court fee and restoration of the suit.
6. Before dealing with the aforesaid contention of the parties it is proper to put on record the decisions relied on and the position of law as it stands now after amendment of Section 115 of the Code by Act 46 of 1999. It may further be noted that case of Bahadur Pradhani v. Gopal Patet, AIR 1964 Orissa 134 is another decision of this Court in the context of restoration of suit dismissed under Order 7, Rule 11 of the Code.
7. In the case of Bahadur Pradhani (supra) the fact involved was that plaint was rejected under Order 7 Rule 11 of the Code for non-payment of deficit Court-fee. Application filed under Section 151 of the Code to restore the suit was allowed by the trial Court. That order was challenged in the High Court on the ground that the order rejecting the plaint is appealable and the trial Court had no jurisdiction to restore the suit by invoking the inherent power under Section 151 of the Code. This Court while noting that rejection of the plaint amounts to a decree and it is appealable yet inherent power of the Court is exercisable to restore the suit inasmuch as the appellate Court could not have considered anything substantial when the suit was dismissed at its threshold for default in payment of deficit Court-fee, That Civil Revision was therefore dismissed.
8. In the Case of Baisnab Padhan (supra) an order of remand of the suit was challenged in the High Court in a Miscellaneous Appeal under Order 43 Rule 1 of the Code. This Court was of the view that a revision is maintainable and allowed the petitioner to convert the Misc. Appeal to a Civil Revision.
9. In the case of Padmataya Panda (supra) a Division Bench of this Court referred to the divergent views of learned Single Judges in the context whether an application under Section 151 of the Code can be entertained as against rejection of a plaint under Order 7, Rule 11 of the Code and after due deliberation their Lordships upheld the view that an application under Section 151 of the Code for restoration of the suit is maintainable.
10. In the case of M/s. Durga Pharma Distributors (supra) learned Single Judge of Andhra Pradesh High Court was posted with the fact of return of written statement filed by the defendants on the ground that the said written statement advanced a counter claim and therefore Court-fee is required to be paid. Learned Single Judge was posted with two fold objection to the maintainability of the Civil Revision viz. (i) that the order passed is not a case decided and therefore the Civil Revision is not maintainable; and (ii) rejection of the plaint amounts to a decree and therefore such an order is appealable. For the reasons indicated therein both the aforesaid contentions were negatived and the revision was found maintainable. Learned Judge opined that the matter relating to payment of Court-fee amounts to a case decided and that can be considered by the revisional Court.
11. The dispute involved in this Civil Revision is not relating to maintainability of an application under Section 151 of the Code for restoration of the suit while it is rejected under Order 7 Rule 11 of the Code. Therefore, the decisions from this Court (as noted above) cited at the Bar are of no relevance to adjudicate the contention of the parties on the question of maintainability of the Civil Revision. So far as the decision in M/s. Durga Pharma Distributors from A.P. High Court (supra) is concerned, that view expressed by the Hon’ble Judge was with reference to the provision under Section 115 of the Code, as it was before the Act 46 of 1999. After amendment of Section 115 by Act 46 of 1999 there has been a sea-change relating to the extent of revisional jurisdiction. Section 115 of the Code as it stands now if broadly summarised then revisional jurisdiction is to be invoked and exercised if cumulatively the following circumstances are available/made out:
(i) it must involve a case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto;
(ii) if such subordinate Court appears to have committed jurisdictional error in any mode as per Clauses (a) to” (c) in Sub-section (1) of Section 115;
(iii) the effect of invoking the revisional jurisdiction would finally dispose of the suit or other proceeding if it is made in favour of revision – petitioner; and
(iv) impugned order must not be an appealable order conferring jurisdiction of appeal either on the High Court or any Court subordinate thereto.
12. The above quantified conditions if qualified then and then only a revision under Section 115 of the Code is maintainable. Applying the condition in proceeding Sub-paragraph (iii) if the impugned order passed on 3.4.2001 shall be allowed in favour of the petitioner then that amounts to disallowing the direction for payment of additional Court-fee and therefore that will not result in disposal of the suit in any manner. Similarly, rejection of the plaint for-default in payment of Court-fee as propounded by this Court in the above noted decision is appealable and also application under Section 151 of the Code can be filed for restoration of the suit. Therefore, the impugned orders are not coming within the category of orders in which revisional jurisdiction under Section 115 of the Code should be invoked by this Court at the instance of the plaintiff,
13. For the above stated reason, the Civil Revision is not maintainable and accordingly the same is dismissed. Before parting with the case, this Court observes that if so legally advised petitioner may apply for restoration of the suit with the undertaking to pay the Court-fee as directed by the trial Court and in that event the trial Court may consider the application for restoration in accordance with law.