VARGHESE ANTONY Vs. FR ANTONY KOCHUVEETTIL

JUDGEMENT

(1.) Is a conditional order to pay costs while allowing an application to restore the suit dismissed for default or to set aside the ex parte decree appealable Can an Original Petition be entertained when the challenge is confined to the liability to pay costs or its quantum Can the discretion of the trial court in fixing the costs be tinkered with in exercise of the jurisdiction under Art. 227 of the Constitution of India Several Original Petitions are being filed challenging the conditional order to pay costs while allowing applications of the following nature under the Code of Civil Procedure, 1908 (the 'C.P.C. for short):

(2.) What then is the consequence of not paying the costs or its requisite quantum as fixed by the court while allowing the applications The necessary consequence is that the application to restore the suit or to set aside the ex-parte decree would stand dismissed. An order rejecting an application under R. 9 of O.IX C.P.C. is appealable under O.XLIII R. 1 (c) C.P.C. Similarly an order rejecting an application under R. 13 of O.IX C.P.C. is appealable under O.XLIII R. 1 (d) C.P.C. Therefore a challenge to the liability to pay costs or its quantum while allowing applications under R. 9 of O.IX C.P.C. or R. 13 of O.IX C.P.C. can be in an appeal only. An Original Petition under Art. 227 of the Constitution of India need not be entertained under the circumstances.

(3.) The words 'sufficient cause' occuring in R. 9 of O.IX C.P.C. and R. 13 of O.IX C.P.C. is an elastic expression for which no hard and fast guidelines can be prescribed. (See G.P. Srivastava v. R.K. Raizada, 2000 3 SCC 54 . The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The necessary corollary is that the courts have a wide discretion in fixing the costs while deciding the sufficient cause. The discretion so exercised by the courts in fixing the costs therefore cannot be assailed under Art. 227 of the Constitution of India.