JUDGMENT D.K. Seth, J.
1. The plaintiff respondent, Canara Bank, had filed a suit for recovery of certain amount. The said suit was registered as Original Suit No. 74 of 1992. By an order dated 9.7.1992 it was found by the learned Civil Judge, Bijnor that the court fees of Rs. 41,645 was in deficit. It had extended time for depositing deficit court fee on 9.8.1992. The time was granted successively either on the application of the plaintiff or otherwise and the case was being adjourned from time to time even sometimes on account of strike by the lawyers. Ultimately the plaint was rejected by an order dated 20.1.1994 on account of non-payment of deficit court fees under Order VII, Rule 11 of the Code of Civil Procedure. It may be noted that the said order was passed in absence of the parties. The plaintiff had made an application under Order IX, Rule 4 read with Section 148 of the Code of Civil Procedure on 19.2.1994. Misc. Case No. 45 of 1994 was registered on the said application. The defendant had filed an objection to the said application. By an order dated 21.3.1997 the said Misc. Case No. 45 of 1994 was allowed and the order dated 20.1.1994 was recalled. It is this order which has since been challenged by the defendant petitioners by means of an application under Article 226 of the Constitution.
2. Sri A. K. Roy, learned counsel for the plaintiff respondent took preliminary objection to the maintainability of the writ petition on the ground that the order impugned is revisable under Section 115 of the Code. Therefore, the ratio decided in the case of Ganga Saran v. Civil Judge, Hapur, AIR 1991 All 114, cannot be attracted to maintain a writ petition.
3. Sri K. M. Asthana, learned counsel for the petitioners on the other hand contended that in view of clause (a) of the proviso to Section 115 of the Code of Civil Procedure, writ petition is maintainable. In asmuch as, according to him the impugned order does not dispose of any proceeding or suit and, therefore Section 115 of the Code is not available against the said order. Thus there being no remedy open, the writ petition is maintainable in view of decision in the case of Ganga Saran (supra). Alternatively, he further contends that he may be permitted and granted leave to amend the cause title and convert this petition into one under Section 115 of the Code of Civil Procedure.
4. Though learned counsel for the parties argued on the other points but before entering into those points, in my view it is necessary to decide preliminary objection at the outset.
5. The contention that clause (a) of proviso to Section 115 stands in the way of Sri Asthana in moving application under Section 115 appears to be wholly misconceived. In the present case, the application is alleged to be one under Order IX, Rule 4 of the Code which was registered as Misc. Case No. 45 of 1994, was allowed and those proceedings under Order IX. Rule 4 of the Code, culminating registration in Misc. Application No. 45 of 1994, was finally disposed of by the said order. Thus, the said order is wholly within ambit of Section 115 of the Code. The ratio decided in the case of Ganga Saran, (supra) emanated from the view that no remedy by way of Section 115 of the Code was available even in respect of civil matters and, therefore. Court in the Full Bench had taken such a view that too for limited purpose, as would be appearing in the said decision, which is not necessary to be gone into for our present purpose.
6. Now it appears that in the interest of justice after having heard the matter on other points, it is necessary for this Court to exercise jurisdiction under Section 115 of the Code since both the counsel in the course of their respective submissions had made erudite argument and raised very interesting question of law which requires adjudication. It is a settled principle of law that an application or appeal, if not maintainable, can very well be converted into one or the other and it is permissible to do the same if it is necessary for the Court to adjudicate the issue and do justice. It is also a case where in my view the issue requires adjudication and, therefore, leave is granted to amend the cause title so as to convert this application into one under Section 115 of the Code. Sri Asthana is permitted to carry on the amendment here and now.
7. After this leave is granted both the learned counsel for the parties has agreed that- the matter be heard and decided in view of arguments made by them giving rise to very interesting questions.
8. After having heard both the learned counsel for the parties at length, the Court proposes to decide the issue so raised in the present case.
9. Admittedly, the order is one under Order VII, Rule 11 of the Code of Civil Procedure which finds mention in the order itself. The order reads as follows :
"Case is called out. None is present. The plaintiff was given time to make the deficiency of court fee good, but he has not paid the remaining court fee within time. The plaint is therefore, rejected in view of Order VII. Rule 11 of the Code of Civil Procedure."
Thus there is no scope of any confusion or doubt that the plaint was rejected under Order VII, Rule 11 when none was present- The suit was not dismissed for default, within the meaning of Rule 2 or 3 of Order IX, of the Code. The suit having not been dismissed under Order IX, Rule 2 or 3, as rightly contended by Sri Asthana, there is no scope of application of Order IX, Rule 4. Order IX, Rule 4 of the Code, in my view, applies only in respect of contingencies, contemplated under Rules 2 and 3 or Order IX. If the suit is dismissed for default in a situation contemplated under Rules 2 and 3 of Order IX, in that event Order IX, Rules 2 and 3 is attracted.
10. Rejection of plaint under Order VII, Rule 11 of the Code is a decree as defined in Section 2(2) of the Code of Civil Procedure. While defining the decree under Section 2(2), the definition included 'rejection of plaint'. The provision for rejection of plaint is provided under Order VII, Rule II of the Code in four contingencies. Here in the present case, the plaint has been rejected under the third contingency namely clause (c) of Rule 11 of Order VII. Therefore, the order impugned is a decree within meaning of Section 2(2) of the Code.
11. Even if for the sake of arguments, the contention of Sri Rai is accepted, even then the order being a decree within definition of Section 2(2) of the Code, the decree needs be set aside and in that event at best Order IX, Rule 9 of the Code can be attracted, since it requires setting aside of the decree but that too is misnomer. Inasmuch as Order IX, Rule 9 applies only to cases for setting aside ex parte decree which are dismissed within a situation contemplated under Order IX, Rule 8 and it does not include a situation contemplated outside the scope of Order IX. Neither it can include the situation as contemplated under Order VII. Order IX. Rule 9 of the Code will be applicable in a situation contemplated under Rule 8 or otherwise, where the suit is dismissed on account of non-appearance.
12. Here though there was default in appearance but the suit was not dismissed under Order IX, Rule 8 on account of non-appearance of the plaintiff. Then again Rule 8 provides where the defendant appeared and the plaintiff does not appear. This case also does not fall within ambit of Rule 8, since in this case the defendant also did not appear as it appears from the order. Here both the defendant and respondents were absent. Therefore, it also did not attract application of Rule 8. If it did not attract application of Rule 8 then it cannot attract application of Rule 9. Thus I am unable to agree with the contention of Sri Rai.
13. It was next contended by Sri Rai, alternatively that even if Order IX, Rule 4 is not applicable, an application under Section 115 is very much maintainable for the purposes of recalling the order rejecting the plaint under Order VII. Rule 11 despite the same being a decree which is subject to appeal.
14. In support of his contention, he has relied on several decisions of this Court as well as various other Courts, namely, M/s. Devesh Kumar Viresh Kumar and others v. Vth Additional District Judge and others. AIR 1981 All 15 ; M/s Narayan Agricultural Corporation and others v. Allahabad Bank and others, AIR 1995 All 225 ; Parmalal v. Mashina Mohanty, AIR 1990 Ori 102 ; Bahadur Pradhani v. Gopal Patel, AIR 1964 Ori 134 ; Surajbhan Gupta v. Union of India and others, AIR 1977 Del 158 and Ganga River Transport v. Jute Company and others, AIR 1982 Cal 290.
15. On the other hand, Sri Asthana contended that the order being a decree, the same is subject to appeal and application under Section 115 cannot be maintained. He further contends that the said application which is contained in Annexure-3 to the petition, is not an application for setting aside the order passed under Order VII, Rule 11 of the Code. According to him there was no ground made out to support the application for setting aside the order under Order VII, Rule 11 of the Code even if according to him for the argument sake it is accepted that application under Section 115 is maintainable against such an order. In support of his contention he has relied on the decision in the case of Shamsher Singh v. Rajinder Prasad and others, (1973) 2 SCC 524 ; M/s. Narayan Agricultural Corporation v. Allahabad Bank and others, 1995 ACJ 317 ; Salildutt v. T. M. C. (P.) Ltd., 1993 ACJ 816 and Gorakhnath Upadhya v. State and others, 1086 AWC 370.
16. Before embarking upon the question as to whether Section 115 is maintainable against such an order, it would be necessary to go into the questions as to the nature and character of the application that has been filed by the Plaintiff which is Annexure-3 to the writ petition. A perusal of the said application shows that the same was inscribed as an application under Order IX, Rule 4 read with Section 148 of the Code. Though it is an established principle of law that the character of an application cannot be decided on the basis of inscription made on the application itself. It is not governed by the citation of provisions of law on the application. It is to be decided on the basis of substance of the application itself. The substance of the application is the decisive factor for deciphering the characteristic of the application.
17. In the present case, the petitioner has made out a case that the case was fixed on 10.1.1994, but on the said date, the same was dismissed on account of non-prosecution. The ground that was made was that no indication of fixation of the said date was ever available to the plaintiff and, therefore, they were unable to prosecute the same and, therefore, the said order should be recalled and suit should be restored to its original number by allowing the plaintiff to prosecute the suit. Therefore, the order dated 20.1.1994 should be recalled and the suit should be restored and the plaintiff should be given an opportunity to prosecute the suit.
18. Thus it appears that it was purely an application for recalling the order dismissing the suit in default or non-prosecution. No ground for recalling the order dated 20.1.1994 was made out in the said application so as to render the said application to an application under Section 115 for recalling the order under Order VII, Rule 11 of the Code rejecting the plaint on account of nonpayment of deficit court-fees. However, for the present purpose, it is not necessary to go into the merit of the case and it would not be wise to determine the issue which is not involved in the said application. We should confine ourselves to the materials placed before the Court and the records on which the trial court had proceeded. The plaintiff had made an application under Order IX, Rule 4 of the Code and the trial court had proceeded on the basis of such an application and passed the impugned order.
19. Since as observed earlier, Order IX, Rule 4 of the Code has been held to be inapplicable, in the facts and circumstances of the case, the impugned order that has been passed on the application under Order IX, Rule 4 read with Section 148 of the Code, is wholly without jurisdiction or in other words, the order has been passed in exercise of jurisdiction which is not vested on the Court below.
20. The plaintiff had never inscribed the application under Section 115 of the Code and on the other hand, he has inscribed the same under Section 148 of the Code, which provides for jurisdiction to the Court to extend time even though expired as might have been originally fixed. But nothing has been mentioned in the said application as the ground for enlargement of time for payment of deficit court fee.
21. In that view of the matter, the impugned order in the present writ petition being order dated 21.3.1997 passed by the Civil Judge, Senior Division, Bijnor in Misc. Case No. 45 of 1994, cannot be sustained and is liable to be dismissed only on the ground that the said order was passed in exercise of jurisdiction under Order IX, Rule 4 of the Code and within which scope and ambit of the present petition as well as present order is confined.
22. Now with regard to applicability of Section 115 of the Code of Civil Procedure is concerned may be gone into.
23. The decision in the case of Shamsher Singh, (supra), cited by Sri Asthana besides the point in issue in the present case. Inasmuch as in the said case, the issue was altogether different, namely, whether the defendant had a right to challenge the decision with regard to quantum of court-fees which is matter between the plaintiff and the Court, arisen in appeal from the order passed under Order VII, Rule 11 of the Code. It was not the case where it was decided that no application under Section 115 is maintainable against the order passed under Order VII, Rule 11 of the Code. The decision in the case of Gorakhnath Upadhyaya, (supra), also does not help Sri Asthana since in the said case, the point involved was as to whether revision lies against the order passed under Order VII. Rule 11. While deciding the said question, it was held that the order under Order VII, Rule 11 of the Code being a decree, is the subject to appeal and where there appeal is provided, revision does not lie. The decision in the case of Sunildutt, (supra), cited by Sri Asthana is also besides the point inasmuch as the ratio decided therein was as to whether the advise given by the counsel would be valid ground under Order IX, Rule 13 of the Code, even if such advise is wrong. In the said case it was held that it cannot be always valid ground under Order IX. Rule 13. The decision in the case of M/s. Narayan Agricultural Corporation (supra), cited by Sri Asthana, also does not help him. On the other hand in the said decision it was held that an order under Order VII, Rule 11 of the Code is open to regular appeal or to an application under Section 115 of the Code, This very decision is also relied upon by Sri C. K. Roy in support of his contention with regard to maintainability of application under Section 115 of the Code.
24. The decision as cited by Sri C. K. Roy, which has been referred to hereinbefore, have held that application under Section 115 of the Code is maintainable in challenging the Order under Order VII, Rule 11 of the Code. Apart from those decisions, there are several other decisions which has taken the same view. The reasons for such a view are that the remedy by way of appeal though available against the order under Order VII, Rule 11 of the Code, rejecting the plaint, a decree within the meaning of Section 2(2) of the Code, would be an Illusory remedy. Inasmuch as if such order is challenged in appeal, the appeal is to be decided on the basis of record and the record will contain only material that the plaintiff was unable to put in deficit court fee within the time extended and, therefore, there would be no material by which such appeal can at all be allowed. In such circumstances, such appeal is definitely liable to fail. Therefore, the remedy by way of appeal treating the order as a decree is in effect an illusory remedy. On this principle, the applicability of Section 115 of the Code has been held to be maintainable though after passing the order under Order VII, Rule 11 being a decree, the Court become functus officio. Inasmuch as only by virtue of an application under Section 115 of the Code, it is possible for the plaintiff to bring before the Court the materials, due to which he was prevented from putting in deficit court fees. This is established principles of law which does not need any support as has been held by several decisions, few of which has been so cited by Sri Roy. However, the present application as having been held not to be an application under Section 115 it is not necessary to attract the ratio decided in the said cases, in the present case, as has been sought to be argued by Sri Roy.
25. Since the scope of this petition is confined only under Order IX, Rule 4 of the Code under which the said application was filed, therefore. I refrain myself from making any observation with regard to other aspects and no observation made in this order will have any effect on the right of the plaintiff. If he has any remedy under any other provision of law apart from Order IX, Rule 4 of the Code which is the subject-matter of present petition. If such right is available to the plaintiff, the same would not be affected by this order.
26. In the result, this petition succeeds and is allowed and the impugned order dated 21.3.1997 passed by the Civil Judge, Senior Division, Bijnor in Misc. Case No. 45 of 1994 is hereby set aside. The revision petition is allowed to the extent indicated above. There will, however, be no order as to costs.