Law: Civil Procedure Code (V of 1908)

Section: 2,4

 Civil Procedure Code (V of 1908)------   ----- O. IX, rr. 2 & 4 ---Restoration of suit-Court has no power to require plaintiff to pay process fee before fixing date for appearance of defendant-Court without fixing such date directing plaintiff to pay process fee within two days-Held, time limit of two days has no warrant in law and plaintiff cannot be penalised if he fails to pay process fee within that time but does so within reasonable time-Order of lower Court, dismissing suit for default, set aside.   Sripati Saran Parshad Singh and others v. Indarjit Mahlon and others A I R 1939 Pat. 160 rel.   Date of hearing : 29th June 1965.     JUDGMENT   This is a revision petition under section 115 of the Code o: Civil Procedure, 1908, against the order of the Civil Judge arc Class, Alipur dated 20-2-1960 (hereinafter called the impugned order), by which he dismissed an application for the restorative of a pre-emption suit dismissed earlier on 22-1-1960, for the petitioner's failure to deposit the process-fee within the time allowed by the learned Civil Judge.   In September 1959, the petitioner filed a pre-emption suit in the Court of Civil Judge, Alipur. By an order date 22-12-1959, he was required to deposit the process-fee within two days from the date of that order and the case was adjourned to 22-1-1960 for the appearance of the defendants. The petitioner however, paid the process-fee on 8-1-1950 and the learned trial Court declined to issue process against the defendants for the petitioner's failure to deposit the process-fee within the time allowed for the purpose and consequently the Court dismissed the suit on 22-1-1960 under Order IX, rule 2, C. P. C. A petitioner under Order IX, rule 4, C. P. C. for the restoration of the suit having failed, the petitioner has filed this revision petition.   On the authority of Sripati Saran Parshad Singh and others v. Indarjit Mahton andothers (A I R 1939 Pat. 160) it is not possible to sustain the impugned order. In that case it was held that the Court has no power to…