RAJESHWAR PRASAD GOYAL Vs. MOTI LAL GOYAL

JUDGEMENT

(1.) THIS is plaintiff's appeal from an order. The brief facts are these. The plaintiff-appellant filed a suit for partition and accounting. The suit is of a high valuation. There were eight defendants to the suit. One written statement was filed by defendant no. 1 and another by defendants 7 and 8. It appears that a gift had been made by defendant no. 1 in favour of defendants 7 and 8. The plaintiff challenged the validity of that gift deed and so these defendants controverted the plaintiff's challenge.

(2.) ON 2-1-1975 the suit was dismissed in plaintiff's default. ON 30-1-75 be moved an application for restoration of the suit under Order 9 Rule 9 CPC. That application was allowed by an order made on 15-4-75. The operative part of the order was as under :-

(3.) IN our opinion in view of the fact that the court below by means of a separate order made on the same day, i.e. 6-5-75, rejected the restoration application, the present appeal would be maintainable under Order 43 Rule 1(c) CPC. The question which falls for our consideration, however, is as to whether on merits any ground had been made out for extension of time for payment of costs. It was stressed before us by Sri M. P. Singh, learned counsel for the plaintiff-appellant, that the court below having conditioned its approach to the application by a wrong conception of the legal aspect, did not exercise its discretion judicially in not extending the time for payment of costs which order should have been made as a necessary corollary to the rejection of the application for reduction of the amount of costs. On the other hand, according to the learned counsel for the defendants-respondents Sri S. N. Verma, the court below applied its mind to the facts of the case and found that there was no justification for reducing the amount of costs and since no prayer had been made by the plaintiff-appellant to extend the time for payment of costs, the inevitable result which was to follow was rejection of the restoration application itself.