SHABBIRMULLA MOHMEDBHAI PALIDA Vs. ZUBEDABEN A MALBARI (DECEASED)

JUDGEMENT

(1.) The petitioners, who are the defendants in the suit filed by the respondents, have challenged the order dated 31.07.2009 passed by the learned Judge, Small Causes Court, Surat below application exhibit 72 in Small Civil Suit No.63 of 1990 in the present petition under Articles 226 and 227 of the Constitution.

(2.) By the impugned order, the learned Judge has allowed the application at exhibit 72 and permitted the respondent to make payment of cost of Rs.500/- imposed as a condition vide order dated 20.04.2006 for restoration of the suit of the respondent which stood dismissed for default on account of absence of the learned advocate for the respondent.

(3.) Learned advocate Mr.Vimal Patel appearing for the petitioners submitted that though the learned Judge has discretion under Section 148 read with Section 151 of the Civil Procedure Code, 1908 (the Code) to extend the time for deposit of the amount of cost, however, in the facts of the case and especially, considering the conduct of the respondent, the learned Judge ought not to have exercised discretion in favour of the respondent. Mr.Patel submitted that there was already default in making payment of cost and the first application which was made for extension of time for deposit of the cost was not pressed by the learned advocate for the respondent on the ground that the learned advocate for the respondent had given another application but no another application for the same purpose was given by the learned advocate for the respondent and in fact, two other applications at exhibits 69 and 71 were given as if the suit was restored and the proceedings of the suit were pending. Mr.Patel submitted that it was only after the applications at exhibits 69 and 71 were given, the respondent filed application at exhibit 72 to cover up the gross negligence and default in making payment of Rs.500/- as per the condition imposed by the learned Judge for restoration of the suit. Mr.Patel, therefore, submitted that since, there was non-compliance of the condition of deposit of Rs.500/-, the suit stood dismissed for default and the learned Judge became functus officio in entertaining any application and, therefore, the impugned order passed by the learned Judge is without jurisdiction.