RADHEY SHYAM Vs. PUTTOO LAL

JUDGEMENT

(1.) This is plaintiffs' appeal against an order of the learned Civil Judge, Hamirpur, rejecting his application for restoration of their suit which had previously been dismissed for default. The plaintiffs Radhey Shyam and others filed a suit against the defendants Puttu Lal and others asserting their interest in some property and for rendition of accounts. The suit was dissmised for default. On an application by the plaintiffs, it was restored by the court by its order dated 17-7-1953 subject to payment of Rs, 70/- to the defendants as costs by 27-7-1953.

(2.) Learned counsel for both the parties said that the sequence of the events after the passing of the order was thus. The plaintiff went back to Farrukhabad where he is resident and remitted by money order a sum of Rs. 70/" to the defendants' counsel on 24-7-1953, On the same date he sent a letter to the Court that he had made the remittance. The letter reached the Court on. the 25th but the remittance did not arrive till the closing hours of the Court on 27th. At 4 P.M. on that date, the court passed an order noting that the plaintiff had written that he had remitted the amount and that it had not been received by defendants' counsel. It took the view that there had been a default in payment of the costs and refused to restore the suit. The plaintiffs have come to this Court in appeal.

(3.) In my view the learned Judge took a some-what technical view of the meaning of the word 'payment'. It is true that payment had not been made actually to the defendants by 27th July, 1953 but the amount was delivered to the post office on 24th July, for remittance to the defendants. A letter was sent to the Court that the money had been sent. It is not necessary for me to decide whether the payment to the post office under a Money Order amounts to payment to the addressee. But in this case, the plaintiffs, by writing to the Court that they had remitted the amount, virtually put it beyond their power to recall the money, If after informing the Court he had revoked the money order, he would have been guilty of mis-conduct for which appropriate action might have been taken against him. For all practical purposes, this was virtual payment.