JUDGMENT :- Rule. Rule made returnable forthwith and heard finally by consent of the parties.

2. This petition involves question whether inherent powers available under section 151 of the Civil Procedure Code could be invoked by the trial Court for allowing extension of time to deposit deficit Court fees and restoration of suit when the plaint was rejected under Order VIT, Rule 11 of the Civil Procedure Code due to non-payment of the required Court fees.

3. A resume of few facts may be set out in order to gather the dimensions of the disputed questions. A Special Civil Suit was filed by the respondent for recovery of damages and compensation to the tune of Rs. 853.50 lacs against the petitioner-M.S.E.B. There was deficit Court fees when the plaint was filed. An application was filed for grant of one month's time to deposit the remaining Court fees. After lapse of one month, again extension of time was sought which was rejected by the trial Court. The respondent filed yet another application dated 9-8-2002 seeking one week's time by way of last chance to make up the deficit Court fees or alternatively to allow him to deposit a cheque of Rs. 3,00,000/-. The alternative prayer was granted by the trial Court. The respondent deposited the cheque in the office of the trial Court. The cheque bounced and hence a notice dated 22-8-2002 was served on the respondent. On the same day i.e. 22-82002 the trial Court passed an order whereby, the plaint was rejected under provisions of Order VIT, Rule 11 of the Civil Procedure Code. The respondent submitted an application dated 6-9-2002, whereby he sought permission to deposit the requisite Court fees (Rs. 3,00,000/-) alleging that there were sufficient funds in his bank account but due to mistake the Bank had failed to honour the cheque in question. The application of the respondent was registered as MARJI No. 906/2002. The petitioner appeared in the proceedings before the trial Court and resisted the application. The petitioner contended that the respondent had given a dude cheque only with a view to gain some time. The petitioner also contended that remedy of appeal is provided under the Code of Civil Procedure since the order of rejection of the plaint would amount to "decree" within the meaning of section 2(2) of the Code. The in-charge Civil Judge considered arguments of both the parties and allowed the application of the respondent by the impugned order dated 3-9-2005. The respondent deposited the Court fees of Rs. 3,00,000/- along with the exemplary costs of Rs. 10,000/- as imposed by the trial Court for restoration of the suit by recalling the order of rejection of the plaint. The petitioner challenges the said order on the ground that there was erroneous and illegal exercise of power under section 151 of the Code, particularly, when there is specific provision of appeal against such order of rejection of the plaint.

4. Mr. Bajaj, learned counsel appearing for the petitioner would submit that the dismissal of the plaint under Order VII, Rule 11 is an appeal able order and, therefore, section 151 of the Civil Procedure Code could not be invoked. He contended that inherent powers ought to be exercised very sparingly and are not to be exercised when there is alternative remedy available under specific provisions of the Civil Procedure Code. He contended that the inherent powers cannot be exercised so as to nullity effect of the statutory provisions contained in the Civil Procedure Code. He seeks to rely on various authorities to which I shall refer lateron. Per contra, learned counsel Mr. Gangapurwala, would submit that the impugned order is legal and proper. He argued that the respondent was not at fault but it was the Bank which committed the mistake when the cheque was presented for encashment. He argued that intention of the respondent was explicit from his act of seeking time and also the conduct of issuing the cheque in question. He would submit that filing of the appeal by the res

Click Here to Read the rest of this document