P L D 1965 (W (PLP)

Sripati Saran Parshad Singh and others v. Indarjit Mahlon and others A I R 1939 Pat. 160 rel. A. S. Kirmani for Petitioner. Hamid Ali Khan Shervani for Yaqub Hussain Zaidi for Respondents. Date of hearing : 29th June 1965. 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.

2. 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.

3. On the authority of Sripati Saran Parshad Singh and others v. Indarjit Mahton and others (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 require a plaintiff to file process-fee before fixing a date for the appearance of the defendant. The plaintiff may elect, if he pleases, to secure the presence of the defendant without issue of process at all. The proper order is to fix a date for the appearance of the defendant and direct the plaintiff to file process-fee within a reasonable period short of that, date. If by the date fixed for the defendant's appearance, the defendant does not appear and the plaintiff has not paid process-fee nor taken the necessary steps for issue of process, the suit is liable to be dismissed under Order IX, rule

2. Thus the time-limit of two days within which the petitioner was to pay the process-fee had so warrant in law and the petitioner cannot be penalised for his failure to deposit the process-fee within the prescribed time, so long it is deposited within reasonable time. In the instant case, civil Courts remained closed from 24-12-1960 to 1-1-1961 for winter vacation and deposit of process-fee by the petitioner on 8-1-1961 must be held to have been made within reasonable time, because it was not impossible to serve the defendants if summons had issued to them on 8-1-1961 or a day or two thereafter. On this view of the matter, the learned Civil Judge was wrong to have declined to issue summons for the appearance of the defendants merely because the petitioner did not deposit process-fee by 24-12-1960, which incidentally, was a closed holiday for civil Courts.

4. The revision petition is, therefore, accepted and the impugned order dated 20-2-1960 is set aside with the result that the preemption suit stands restored for trial in accordance with law. S. Q. Petition accepted.