mA %’9/ gg HIGH COURT OF CHHATTISG 3ILASPUR Misrelianeous Appeal (PR) No.137 of 2009 @ APPELLANT/z Nehru La] Patel, S/o Gokul Patel, aged (Plaintim 25 years, an unemployed disabled (Lame) person, R/o Village Gudeli, RS. 6c. Tehsil Saxangarh, Distt. Raigarh (C.G.) Versus RESPONDENTS/z 1. Dr. Padman Kumar Patel, Asstt. (Defendants) Surgeon, Senior Medical O$cer, KG. Hospital, Raigarh (C.G.) 2. Dharmendra Patel, S/o Girdhari Patel, aged 44 years, R/o Village Gudeli, RS. 8n Tehsil Sarangarh, Distt. Raigarh (C.G.) 3. State of Chhattisgarh, Through Collector, Raigarh (C.G.) {Miscellaneous appeal under Order 43 Rule 1 (11a) of the Code of Civu‘ Procedure, 1908} Present: Mr. S.N. Nande, counsel for the appellant. Mr. Arvind Dubey, Panel Lawyer for the State/respondent No.3. Single Bench: Hon’ble Mr. T.P. shuns, J ORAL ORDER (18-3-2009) 1. Registry has pointed out defaults relating to maintainability of this appeal and iiling of typed copies of certain documents. This appeal has been hled after 1,266 days of its limitation. 2. Heard on I.A.No.1, application for condonation of delay in hling this appeal. 3. On due consideration, l.A.No. 1 is allowed. Delay in nling the appeal is hereby condoned. 4. Learned counsel for the appellant submits that Registry has pointed out a default that miscellaneous appeal is not maintainable in accordance with clause (na) of Rule 1 of Order XLIII of the Code of Civil Procedure, 1908 (for short ‘the Code’), but the Court below has withdrawn the exemption hom payment of Court” fees and has dismissed the suit, therefore, the appeal is maintainable under clause (na) of Rule 1 of Order XLIII of the Code. In the circumstances, the default pointed out by the Registry be over ruled. 5. I have perused the order impugned. s ® 6. Vide order dated 13-4-2005, the District Judge, Raigarh has dismissed the suit on the ground of insu$ciency of Court fees under Order 7 Rule 1 1 of the Code spea£ca11y holding that the appellant is not enu'tled for any exemph‘on in tenns of Section 35 of the Court Fees Act. Against the aforesaid order, the appellant has hled this miscellaneous appeal under clause (11a) of Rule 1 of Order XLIII of the Code. Clause (na) of Rule 1 of Order XLIII ofthe Code reads thus, “an order under rule 5 or rule 7 of Order XXXIII rejecting an applicau'on for permission to sue as an indigent person”. In this case, the appellant has not med any application to‘sue as an indigent person. The Court below has not rejected his application to sue as an indigent person, but the order impugned reveals that the Court below has rejected the plaint underdgrder 7 Rule 11 (c) of the Code which shall be deemed to be decree¥in accordance with sub— section (2) of Section 2 of the Code and regular appeal under Order XLI of the Code shall lie.’ However, instead of hling regular appeal, the appellant has dled the instant miscellaneous appeal. The miscellaneous appeal med on behalf of the appellant is not sustainab/le under the law, specihcally in terms of clause (na) of Rule 1 of Order XLIII of the Code. 8. Consequently, the appeal is dismissed summarily. However, the appellant may file appropriate appeal- No order as to costs. Sd/- T. P. Shanna JudgE Soma f \ .