The court has the jurisdiction to restore a suit dismissed for non-payment of process fee under Order 9, Rule 4, Civil Procedure Code or by exercise of inherent power under Section 151, Civil Procedure Code.

ORDER :- Money Suit No. 243 of 1969 in the Court of the learned Munsif, Puri, was filed on 29-7-1969 seeking to recover a sum of Rs. 710/- on the basis of a promissory note. On 2-8-1969, upon examination of the plaint it was found to be in order. The learned Munsif directed the plaintiff to file the requisites for summons to the defendants by 14-8-1969. On 14-8-1969, no steps were taken by the plaintiff when the case was called. The plaint was accordingly dismissed. An application for restoration of the suit under Order 9, Rule 4, Civil Procedure Code was filed on 10-9-1969 and was registered as Misc. Case No. 215 of 1969. After several adjournments, on 10-11-1969, the learned Munsif took up that miscellaneous proceeding for disposal. He came to hold

"The application under Order 9, R. 4, Civil Procedure Code is misconceived. By 14-8-1969 the date on which the suit was disposed of the plaint was not admitted at all. On 14-8-1969 orders were passed for rejecting the plaint for the failure of the plaintiff to take steps. There was no dismissal of the suit."

This Civil Revision is directed against the dismissal of the miscellaneous proceeding.

2. The view taken by the learned Munsif seems to be not justified. Rules 1, 2 and 3 of Order 9, Civil Procedure Code provide,

"1. On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the courthouse in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

2. Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee, or postal charges (if any) chargeable for such service, the Court may make an order that the suit be dismissed :

Provided that no such order shall be made although the summons has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent.

3. Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed."

The purpose of quoting all these three rules is to indicate that by the time the stage for Rule 4 is set the dismissal under Rules 2 and 3 is contemplated and those two rules are expected to be the only rules under which the suit could be dismissed. Under the Code of Civil Procedure, as it stood, there was no requirement to pay the process fee along with the plaint, and on admission of the plaint the requisites are to be filed. By an amendment made in this Court in Order 7, Rule 9, Civil Procedure Code with effect from 7-5-1959 the following has been added as (1-A).

"The plaintiff shall present with his plaint :

(i) ...... ..... ..... ...... ..... ....... ..... .... ..... .... ...... .....

(ii) draft forms of summons and fees for the service thereof."

Thus the plaintiff is required to make the payment or the process fee as a condition precedent to the admission of the plaint. The learned Munsif has, therefore, indicated that as the plaint had not been admitted the order of dismissal passed by him on 14-8-1969 was not one dismissing the suit. This position seems to be somewhat curious. He had already registered a suit and the order was being passed in the suit as registered by him. It is true that the plaint had not been admitted on account of the fact that under Order 7, Rule 9 (1-A) Civil Procedure Code requisites for processes for the defendants are to be filed before the plaint is admitted. But any such dismissal must really be covered within the purview of Rule 2 as there is no other provision for dismissing the suit for non-payment of the process-fee. Order 9, Rule 4 governs the case of restoration of a suit which is dismissed prior to the trial. In such circumstances to exclude from the purview of Order 9, Rule 4 contingencies as in hand would lead to difficulty. I would, therefore, con