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22.11.2019

C.M.P. No.683 of 2019 and C.M.P. No.684 of 2019

Heard Shri S.K. Mishra, learned counsel for the

petitioner. In spite of notice, nobody appears on behalf of

the contesting opposite party.

These Civil Miscellaneous Petitions involve a

challenge to the order vide Annexure-3 passed by the

Civil Judge (Sr. Divn.), Athmalik thereby rejecting an

application U/o.9 rule 4 read with Section 151 of C.P.C.

Short background involved in this case is that the

suit was dismissed particularly for non-payment of Court

fees within the time framed by the trial court. As a

consequence plaintiff filed application U/o.9 rule 4 read

with Section 151 of C.P.C. The same is rejected by the

order vide Annexure-3 under the premises that for the

involvement of rejection of the plaint under the provision

of Order 7 rule 11 of C.P.C, no application U/o.9 rule 4

read with Section 151 of C.P.C. is entertainable.

Taking this Court to the legal provision as well as

the citations in the case of Padmalaya Panda versus

Masinath Mohanty as reported in AIR 1990 Orissa 102

and another decision of the Patna High Court in the case

of Damodar Prasad and others versus Aditya Maharaj

and other as reported in AIR 1972 Patna 289 Shri S.K.

Mishra, learned counsel for the petitioner contended that

for the direct application of the decisions to the case at

hand, the impugned orders should be interfered with and

set aside.

Considering the submission of learned counsel for

the petitioner and taking into account the materials

available on record this Court finds, admittedly the suit

C.M.P. No.683 of 2019

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has been dismissed under the provision of Order 7 rule

11 of C.P.C. involving non-payment of Court fees within

the time framed by the trial court. Further facts disclose

that as a consequence of such rejection of the plaint

plaintiff filed an application U/o.9 rule 4 read with

Section 151 of C.P.C. Taking into account the decisions

cited at Bar, this Court finds, considering the issue as to

whether in such contingency an appeal would lie or an

application under Order 9 rule 4 of C.P.C would lie, the

Division Bench of this Court in the decision vide AIR

1990 Orissa 102 has come the conclusion that even

though the application under Order 9 rule 4 of C.P.C is

appealable but the application U/o.9 rule 4 read with

Section 151 of C.P.C shall also be maintainable. The

Patna High Court has also the same view by its decision

vide AIR 1972 Patna 289.

Considering the above and for the settled position

of law, this Court interfering with the order vide

Annexure-3 sets aside the same and allows the

application U/o.9 rule 4 read with Section 151 of C.P.C.

Consequently the deposit of the Court fees be made

within a period of two weeks hence and the suit should

be decided on contest and giving opportunity to the

defendants.

The Civil Miscellaneous Petitions stand disposed of with

the above direction.

Issue urgent certified copy as per rules.

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(Biswanath Rath, J.)

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Ayas