The rejection of a plaint for non-payment of Court Fee does not preclude the Court from trying the suit and ensuring that cases are decided on their merits.

The respondent herein, as plaintiff, had filed a civil suit being Title Suit No. 195 of 1987 in the Court of Assistant District Judge, Guwahati which was registered on 30th October, 1987. There was deficit Court Fee to the tune of Rs.937.85 and the plaintiff was granted time to make up the deficit Court Fee upto 3.1.1988. On 3.1.1988 the plaintiff by separate application prayed for more time to make up deficiency in the payment of Court Fee. Time was granted upto 19.5.88. On 19.5.88 the plaintiff was granted further time upto

21.5.1988. However, the Court was closed on that date and the case was fixed for payment of deficit Court Fee on 28.5.1988. On 28.5.1988 the following order was passed:

"The plaintiff has not filed Hazira. The deficit Court Fee is not paid so the plaint is rejected under Order 7 Rule 11."

2. On 17.8.88 the plaintiff filed another petition No. 4894 under Section 151 CPC that the Court Fee may be allowed to be paid and the case be restored. The Court passed an order on 17.8.88 in the following term:

"Dt. 17.8.88 Petition No. 4894 filed by the plaintiff petitioner u/s 151 CPC. Heard the learned lawyer and peruse the petition. For the ends of justice, the petition is allowed fixing 27..8.8S for payment of deficit Court Fee and the case is restored to file."

On 27.8.88 an order passed was that the deficit Court Fee had been paid, and fixed the case on 14.9.88 for steps for summoning the defendant. After the service of notice on the respondent the civil suit proceeded, written statement was filed and issues were framed. On 6.1.97 the suit came up for orders on the preliminary issues as to whether the Court had jurisdiction to try the suit. It was argued on behalf of the defendant that the plaint had been rejected under Order 7 Rule 11 CPC on 28.5.88 and the rejection of the plaint amounts to a decree against which an appeal lies and no application under Section 151 CPC lay for making good the deficiency in the Court Fee and for restoring the suit. The order dated 17.8.88, being without jurisdiction, having been passed under Section 151 CPC, the Court cannot try the suit as it was wholly without jurisdiction. This plea was rejected by the impugned order dated 6.1.1997. Hence, the present revision petition at the behest of the defendant in the suit.

3. The learned counsel for the petitioner argued that the trial of the suit by the Court is wholly without jurisdiction as the very basis of the suit is illegal, inasmuch as, after rejecting the plaint under Order 7 Rule 11 CPC the same has been restored under Section 151 CPC whereas remedy with the plaintiff was only to file an appeal against the order or rejection of the plaint on the basis of non-payment of Court Fee, as the rejection itself amounts to a decree.

4. At the outset, it may be observed here that after the petitioner came to know about the order dated 17.8.1988 passed in the application, under Section 151 CPC, that order itself was not made the subject matter of challenge before any Court. Even till today, the order dated 17.8.88 has not been challenged as such.

5. Learned counsel for the petitioner cited the judgment of the learned Single Judge of this Court (B.L. Hansaria, J as his Lordship then was) reported as 1989 2 GLR 248 (Smti Usharani Dhdra and ors.-Vs-Smti Subharani Bhawal and ors) to contend that the order rejecting the plaint for non-payment of Court Fee amounts to a decree and is an appealable order. It may be observed here that in the case before the learned Single Judge the Courts below had ordered that the plaintiff may file an appeal instead of filing an application under Section 151 CPC and that view of the Courts below was up held. It was not a case where the lower Courts had exercised inherent power under Section 151 CPC. On the other hand, the learned counsel for the respondent cited a Division Bench judgment of this Court reported as (1984)1 GLR 31 (Santosh Chandra Das-Vs-Arjun Chandra Das and ors.) (Division Bench heade