KASTURI BAI Vs. VARALAKSHMI

JUDGEMENT

(1.) The defendants are the appellants. This CMA. is preferred against the order setting aside the exparte decree dated 16-1-1982 passed against them 'On terms' said to be onerous. It is stated in the affidavit filed in support of the petition that the suit was posted for filling written statement on 18-12-1981 and it was adjourned to 15-1-1982. In the interregnum the second defendant went on pilgrimage to Subarimalai and as a result he could not be present on 15-1-1982 when the suit was called for hearing. His mother, the first defendant is a widow and she is not able to attend the court Therefore both of them could not be present on that day, On his return to the village on 19-1-1982 the second appellant immediately contacted his counsel. The counsel informed him that the suit was decreed exparte on 16-1-1982 and that the counsel also was not present when the suit was called on 15-1-1982. In the above circumstances he was prevented from appearing in the court.

(2.) The fact that the second appellant went on pilgrimage was not denied in the counter affidavit. The lower Court also found as a matter of fact, that the absence of the second appellant from the court was bona fide and constitutes sufficient cause for his failure to appear on 15-1-1982.But the exparte decree was set aside subject to the condition of the "appellants depositing half the decretal amount and costs of the suit" by 16.7.1982 failing which the petition was ordered to be dismissed. Against the imposition of the condition of depositing half of the decretal amount and costs of the suit this appeal has been filed by the appellants.

(3.) It is contended by Smt. Marie Desai for the appellants that once it is shown that the appellants were prevented by sufficient cause from appearing in the court the discretion has to be exercised judiciously in awarding costs. Though the power of the court under order 9 Rule 13 C P C is very wide that power has to be exercised judiciously depending upon the exigencies of the circumstances under which the appellants were prevented from appearing in the court. In view of the finding of the lower court that the first appellant is a widow and the second appellant went on pilgrimage and they were therefore prevented from appearing in the court, and when it is satisfied that there was sufficient cause for not appearing in the court, the lower court should have exercised its discretion in awarding costs incurred on the day when the suit was called for hearing and should not have imposed the onerous conditions of deposting half the decretal amount and suit costs.