The court emphasized the power of the trial court to recall its order if satisfied that the party failed to pay the deficit court-fee for valid reasons and highlighted that no decree was in existence as the deficit court-fee was not paid before the preliminary decree was drawn.

A Civil Original Suit for partition of the property with regard to House No. 349 situated at Mohalla Dalpatian, Jammu was instituted by the respondents before the Court of learned District Judge, Jammu against the present petitioner and two others. The suit was transferred for its trial to the learned Additional District Judge, Jammu. On 12-3-2008, learned trial Judge passed a preliminary decree for partition of the suit property. Mr. A.G. Sheikh, Advocate was appointed as Commissioner to cause partition on spot after summoning the par#31;ties and following the due procedure of the law. It was also directed that before the pre#31;liminary decree is drawn, the plaintiffs shall make good deficiency in the court-fee by next date. Suit was ordered to be listed on 16-3-2008. On that date, time was extended to make good the deficiency of the court-fee. The suit was ordered to be listed on 31-3-2008, on which date, for not making good deficiency in the court-fee, learned trial Judge rejected the plaint under Order VII, Rule 11 of the Code of Civil Procedure (CPC). Re#31;spondents-plaintiffs, thereafter filed an ap#31;plication under Section 149 r/w Section 151 of CPC, praying therein, that the suit be restored to its original number and respondent be permitted to pay the requisite court-fee. The said application was resisted by the pe#31;titioner. Learned trial Judge vide order dated 31-10-2008 allowed the application of the respondents and ordered for restoration of the suit to its original number, subject to pay#31;ment of costs of Rs. 1000/- Respondents were directed to pay deficit court-fee on the next date of hearing.

2. Petitioner, being aggrieved of the said order, has challenged the same in this revi#31;sion petition.

3. Learned counsel for the petitioner sub#31;mitted that plaint, which was rejected under Order VII, Rule 11 of the CPC, constitutes a decree in terms of Section 2(2) of Code of Civil Procedure, Svt. 1977 (for short “Code”). Learned counsel submitted that since the decree was drawn up on pursuance to the order of rejection of the plaint, respon#31;dents, if aggrieved thereof, had to challenge the same by filing an appeal, as provided by Section 96 of Code read with Order XLI of Code. Learned counsel submitted that after the plaint was rejected, the application could not be entertained by the learned trial Court as the learned trial Court was functus officio of the matter. Learned counsel, in support of his contention, referred to and relied upon the judgment of Hon’ble Supreme Court in case titled “Narpat Singh v. Rajasthan Finan#31;cial Corporation” reported in 2007 (II) SLJ 475 : (AIR 2008 SC 77); “Abdul Rashid Rather v. Gh. Ahmad Ganai, reported in 2011 (1) SLJ 341 : (AIR 2011 J&K 29) and “K.N. Mohanan v. N.V. Nalinakshan” reported in 2004 (1) Civil and Rent Judicial Reports (Kerala High Court) : (2003 AIHC 4109) and submitted that this revision petition deserves to be allowed and the impugned order be accordingly set aside.

4. Learned counsel for the respondents submitted that since the respondents for valid reasons were prevented from paying the defi#31;cit court-fee, an application was filed seek#31;ing restoration of the suit and permission to deposit the deficit court-fee. Learned coun#31;sel submitted that the trial Court has power to pass the order, which is impugned, in this revision petition. Learned counsel, in sup#31;port of his contention, referred to and relied upon case titled “Maharashtra State Electric#31;ity Board v. Niranjan Alloys Steels Pvt. Ltd.” reported in AIR 2007 (NOC) 1353 (Bom). Learned counsel prayed for dismissal of re#31;vision petition.

5. The payment of court-fee in the suits is determined by the Court Fee Act/Suit Variation Act. The Court fee is being charged for the benefit of the State. The payment/non payment of the court-fee, in any manner, does not affect any of the right of the defendants in civil original suit. The Court, in order to ensure that provisions of Court Fee Act

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