DEVI Vs. CANARA BANK BANGALORE

JUDGEMENT

(1.) THE above appeal has been filed against the order dated 16.11.1979 in I.A. No. 659 of 1978 in O.S. No. 796 of 1974 on the file of the Sub Court, Salem dismissing the petition filed by the plaintiff's under O. 9, R. 9, C.P.C. THE said petition was filed to restore O.S. No. 796 of 1974 which was dismissed for default on 26.6.1978. From the copy of the petition and the orders as well as the printed copy of the order filed, it could be seen that on 25.10.1979 the counsel for the appellants made an endorseme nt as follows:? ?May be allowed on some normal terms.? THE counsel for the respondents also made an endorsement that the petition may be allowed on heavy terms. THE Court below ordered that the application will be allowed on payment of costs of Rs. 50/- by the petitioners to the respondents on or before 15.11.1979 and it has been further stated in the order that the petition shall stand dismissed on failing to comply with the said condition. THEreafter from 25.10.1979 the matter stood adjourned to 16.11 .1979. Since the cost of Rs. 50/- was not paid as stipulated, the Court had no other option but to dismiss the petition on 16.11.1979. It is against the said order, the above appeal has been filed.

(2.) LEARNED counsel for the appellants contended that the default on the part of the appellants was on account of the fact that they were not informed properly and that the Court below committed an error in having directed payment of Rs. 50/- as costs, and more so in making it as a condition for allowing the application filed under O. 9. R. 9, C.P.C. Having regard to the facts and circumstances of the case, this Court is not persuaded to agree with the above plea of the appellants. The cost of Rs. 50/- cannot be said to be either on the high side or unreasonable and the appellants had not made out any substantial grounds for having committed default in not prosecuting the suit at the appropriate stage but also in not complying with the reasonable condition imposed by the Court below for restoring the suit on file. The course adopted by the Court below cannot be said to be unreasonable. The Court below had no other option but to dismiss the application. The appeal is dismissed. No costs.