ARSHI ALI FIROZ KHAN v. NAZIR KHAN HAFIZ KHAN & Ors.

defendant no.1 under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that no cause of action was disclosed by the respondent no.1-plaintiff. The petitioner also claimed that the suit was not properly valued and, hence, the plaint was liable to be rejected. The trial Court, by an order dated 01.12.2011, allowed the application filed by the petitioner to the extent that the respondent no.1 had paid the deficit Court fees and, therefore, directed the respondent no.1 to pay the deficit Court fee within a period of one month from the date of the 2 WP4317-12 order. It appears that the deficit Court fees were not paid by the respondent no.1 within a period of one month from

01.12.2011. Hence, the respondent no.1 filed an application for permission to deposit the Court fees and to restore the suit. It was reiterated by the respondent no.1 in paragraphs 5 and 6 of the application that he was ready and willing to pay the deficit Court fees within a period of two days and the suit be restored. The trial Court by the impugned order dated 11.06.2012, allowed the application filed by the respondent. Learned counsel Shri Moin appearing on behalf of the petitioner, submitted that the trial Court was not justified in allowing the application filed by the respondent no.1. It is submitted that the application filed by the respondent no.1 was not tenable and the respondent no.1 was required to file an appeal against the order dated 01.12.2011 partly allowing an application filed by the petitioner under Order VII Rule 11 of the Code of Civil Procedure. The learned counsel submitted that the reasons stated by the respondent no.1 in the application for restoration of the suit were not such that the suit could be restored. It is submitted that it was specifically denied by the petitioner that the respondent no.1 was ill and was suffering from various ailments and in this background it was mandatory for the trial Court to permit the parties to tender evidence. Shri Randive, the learned counsel for the respondent no.1, supported the order passed by the trial Court and submitted that there was no reason to file an appeal against the order dated 01.12.2011 as the respondent no.1 was not aggrieved by the order at all. The respondent 3 WP4317-12 no.1 was ready and willing to pay the deficit Court fees which the respondent no.1 was not able to pay because of his serious ailment. It is submitted that there was no question of filing an appeal as by the application filed by the respondent no.1, the respondent no.1 was merely seeking enlargement of time of only two days for depositing the Court fees. It is submitted that grave and irreparable loss would have been caused to the respondent no.1 if the respondent no.1 was not permitted to deposit the Court fees and, hence, the trial Court was justified in allowing the application filed by the respondent no.1. The learned counsel for the respondent no.1 submitted that the medical certificates were placed by the respondent no.1 on record to show that the respondent no.1 was seriously ill at the relevant time and was not in a position to approach his counsel to deposit the Court fees. In the interest of justice, according to the learned counsel for the respondent no.1, this Court should not interfere with the impugned order. On hearing the learned counsel for the parties, it appears that the trial Court was perfectly justified in allowing the application filed by the respondent no.1 and allowing the respondent no.1 to pay the deficit Court fees within two days. It is informed to this Court by the learned counsel for the respondent no.1 that the deficit Court fees have been deposited in the trial Court within two days and the costs of Rs.1,000/- have also been deposited in the trial Court. It appears on hearing the learned counsel for the respondent no.1 that the trial Court has now proceeded to deal with the suit filed by the respondent no.1 as this Court has not granted any interim relief staying the proceedings before the trial Court. 4 WP4317-12 The submission made on behalf of the petitioner that the application filed by the respondent no.1 for permission to deposit the Court Fees was not tenable and an appeal ought to have been filed by the respondent no.1 against the order dated 01.12.2011 is not well founded. The respondent no.1 was not aggrieved by the order passed by the trial Court dated 01.12.2011. In fact, the respondent no.1 wanted to follow the order and wanted to deposit the deficit Court Fees in the trial Court. The Court fees, however, could not be deposited in view of the serious ailment of the respondent no.1. The trial Court considered the fact that the respondent no.1 was ill and suffering from various ailments. Due to his ailment, the respondent no.1 was not able to contact his counsel and to pay the deficit Court fees. The trial Court relied on the affidavit filed by the respondent no.1 in support of the application. The trial Court also relied on the various documents in the form of medical certificates, etc. to hold that the respondent no.1 was ill at the relevant time and, hence, an opportunity could be granted for payment of deficit Court fees. The approach of the trial Court is absolutely appropriate and any other approach of the trial Court in the matter, could not have been justified. The trial Court rightly allowed the application and permitted the respondent no.1 to deposit the deficit Court fees within a period of two days, which the respondent no.1 has deposited. In the result, the writ petition fails and is