# Smt. Pratibha Tiwari Revisionist v. Satish Chandra Tiwari & Ors

- **Citation:** (2016) 4 ILRA 267
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-01
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-pratibha-tiwari-revisionist-v-satish-chandra-tiwari-ors-43579
- **Pages:** 3

## Headnote

Section 10 C.P.C. - No Previously Instituted Suit - Rejection of plaint for non-payment of court fee means
suit never validly instituted; pendency of First Appeal No. 330 of 2008 against such rejection does not create a
"previously instituted suit" so as to attract Section 10 C.P.C. (Paras 7-9).

Institution of Suit and Court Fee - Suit is instituted only on presentation of plaint accompanied by
requisite court fee; if court fee is not paid and plaint is rejected, in the eyes of law the suit never came to be
instituted, hence no foundation for plea of stay under Section 10 C.P.C. (Paras 8-9).
268 INDIAN LAW REPORTS ALLAHABAD SERIES
Recall vs. Challenge of Order - Where application under Section 10 C.P.C. (73 Ga) was rejected and not
challenged, subsequent recall application (80 Ga) is not maintainable in absence of grounds warranting recall;
proper remedy was to assail the earlier order before higher forum. (Paras 5-6, 10).

Civil Revision Dismissed - No illegality found in trial court's refusal to frame Section 10 issue or to recall
earlier order; revision under Section 115 C.P.C. dismissed on 1.4.2016. (Para 11).

## Text

4 All. Smt. Pratibha Tiwari Vs Satish Chandra Tiwari & Ors.
267
10. In present case, if the impugned order is allowed to stand, it may have effect of
disposing off point in dispute over which a decision had become final between the parties in earlier
decided suit and proceedings relating to rights of revisionist; so there are chances that it would
occasion irreparable loss or any failure of justice to him; because the defendants-revisionist will not
get opportunity to disprove the plaintiff-appellant's case brought by amendment and get the matter
decided on its merits. The trial court had ignored these facts before passing the impugned order.
Therefore passing of non-speaking, unreasoned impugned order without properly appreciating the
facts of the case amounts to exercise of jurisdiction by lower appellate court with material
irregularity and illegality.

11. Therefore, for the reasons discussed above, revision succeeds. The impugned order
dated 25.01.2012 passed by Ist Addl. District Judge, Gorakhpur, in Civil Appeal No. 122/2010
(Ram Het v. Shyam Lal & others) is set aside. The matter is remanded back to lower appellate
court with direction to afford fresh opportunity of hearing to parties, and decide application 12-Ga
of appellant (/plaintiff) under Order-VII, Rule-11 CPC by well reasoned order, afer application of
judicial mind.

12. Let e copy of this order, and records, be sent back to lower Court immediately.
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REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2016

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Civil Revision No.- 121 Of 2016

Smt. Pratibha Tiwari ...Revisionist
Versus
Satish Chandra Tiwari & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Ramendra Asthana

Section 10 C.P.C. - No Previously Instituted Suit - Rejection of plaint for non-payment of court fee means
suit never validly instituted; pendency of First Appeal No. 330 of 2008 against such rejection does not create a
"previously instituted suit" so as to attract Section 10 C.P.C. (Paras 7-9).

Institution of Suit and Court Fee - Suit is instituted only on presentation of plaint accompanied by
requisite court fee; if court fee is not paid and plaint is rejected, in the eyes of law the suit never came to be
instituted, hence no foundation for plea of stay under Section 10 C.P.C. (Paras 8-9).
268 INDIAN LAW REPORTS ALLAHABAD SERIES
Recall vs. Challenge of Order - Where application under Section 10 C.P.C. (73 Ga) was rejected and not
challenged, subsequent recall application (80 Ga) is not maintainable in absence of grounds warranting recall;
proper remedy was to assail the earlier order before higher forum. (Paras 5-6, 10).

Civil Revision Dismissed - No illegality found in trial court's refusal to frame Section 10 issue or to recall
earlier order; revision under Section 115 C.P.C. dismissed on 1.4.2016. (Para 11).

(Delivered by Hon'ble M.K. Gupta, J.)

1. The revisionist is one of the defendants in Original Suit No.352 of 2006. The suit was
instituted by the plaintiff-opposite party for mandatory injunction. The defendants in the said suit
moved an application 69 Ga before the trial court pointing out that a matter arising out of Original
Suit No.721 of 2005 is pending before this Hon'ble Court, in which validity of Will dated
27.3.1985 on the basis of which the plaintiff claims title to the suit property, is an issue under
consideration. It was further pointed out that by an order dated 13.11.2006 the instant suit was
clubbed with Original Suit No.721 of 2005 and the said suit was made the leading case.
Consequently, it was prayed that since the leading case is pending before this Court and, therefore,
proceedings of Original Suit No.352 of 2006 be stayed.

2. The application was opposed by the plaintiff stating that there was no stay by any court
to the proceedings of the instant suit.

3. The trial court, by an order dated 11.5.2015, rejected the application. Aggrieved thereby,
some of the defendants preferred application under Article 227 No.3830 of 2015 before this Court.
The petition was dismissed by order dated 18.8.2015 by noting that the defendants themselves
admit that Original Suit No.721 of 2005 stood dismissed and as such the application filed by them
on the ground that the proceedings of the instant suit are to be stayed during the pendency of the
Original Suit No.721 of 2005, was a misconceived one. However, liberty was reserved in favour of
the defendants to move a separate application raising plea of Section 10 C.P.C., in case they are so
advised.

4. In pursuance of the liberty so granted, the defendants filed an application 73 Ga before
the trial court for framing an issue relating to applicability of Section 10 C.P.C. The trial court,
after taking into consideration the objections filed by the plaintiff, rejected the said application. In
the order, it is noted that Original Suit No.721 of 2005 was rejected, as the plaintiff did not pay the
requisite court fee. The trial court further noted that no evidence has been filed by the defendants to
demonstrate that the said suit or any appeal arising out of order dismissing the said suit is pending
before any court of law. Consequently, it came to the conclusion that Section 10 C.P.C. will have
no application and rejected the application. The aforesaid order was not challenged by the
defendants, instead they filed another application 80 Ga for recalling the order dated 24.9.2015 and
for taking fresh decision in accordance with the directions issued by this Court on 18.8.2015. The
trial court has rejected the said application by order dated 2.12.2015 holding that no case for recall
of the order dated 24.9.2015 is made out and in case the defendant was aggrieved by the said order,
4 All. Ashok Kumar Gupta & Anr. Vs State Of U.P. & Ors.
269
 the same should have been challenged before the higher court. Aggrieved by the order dated
2.12.2015 dismissing the application 80 Ga, instant revision has been filed under Section 115 C.P.C.

5. Learned counsel for the revisionist submitted that the trial court has failed to comply with the
directions of this Court dated 18.8.2015 in not framing an issue relating to applicability of Section 10 C.P.C. It is
urged that in such circumstances, the revisionist was justified in filing the application 80 Ga for recall of the
order dated 24.9.2015. He further submitted that an appeal against the order rejecting the plaint for non payment
of court fee is pending before this Court and thus, Section 10 C.P.C. will have full applicability in the matter.

6. Under Section 10 C.P.C., no court could proceed with trial of any suit in which the matter in issue is
also directly or substantially in issue in a previously instituted suit between the same parties. Thus, for
application of Section 10 C.P.C. it is necessary that there has to be a duly instituted previous suit between the
same parties in which the issue is directly and substantially the same. In the instant matter, admittedly, as per the
assertions made in paragraph 13 of the affidavit, the plaint of Original Suit No.721 of 2005 was rejected on
ground of non payment of court fee. In para 14, it is stated that First Appeal No.330 of 2008 is pending before
this Court against the order rejecting the plaint for non payment of court fee. Even if for argument sake it is
assumed that an appeal arising out of a suit being continuation of the proceedings would attract Section 10
C.P.C., still this Court finds that in the instant matter, there is no previously instituted suit at all in the eyes of
law. A suit gets instituted in civil court on presentation of plaint accompanied by payment of requisite court fees.
In case the court fee is not paid, then in the eyes of law the suit never came to be instituted and thus, the plea
raised by the revisionist that there being a previously instituted suit now pending before this Court by way of an
appeal, is wholly misconceived.

7. Further, this Court also does not find any illegality in the view taken by the revisional court in
rejecting the application 80 Ga on the ground that in case the revisionist was aggrieved by the previous order,
the same should have been challenged and there was no ground which may warrant recall of the previous order.

8. The instant revision lacks merit and is dismissed.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.03.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAM SURAT RAM (MAURYA), J.

First Appeal No.- 177 Of 2007

Ashok Kumar Gupta & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents