NANDLAL DHOOT Vs. PARASHRAM DHOOT

JUDGEMENT

(1.) This appeal has been filed by the plaintiff against the order dated 26 -6 -1970 and 28 -7 -70 passed by the Additional District Judge, Hoshangabad, in civil suit No. 3 -A of 1964.

(2.) The facts of the case, in brief, are that the plaintiff, who is insane, filed the present suit through his next friend and guardian Smt. Krishnabai, his wife, for possession of the suit house against the defendant. The suit was dismissed in default for non -appearance of the plaintiff on 3 -7 -1967. In the application under Order IX, rule 9, Code of Civil Procedure, for restoration of the suit it was mentioned that since the condition of the plaintiff had deteriorated and it was suspected that he was suffering from cancer and as such he was taken to Maharashtra State for treatment and Smt. Krishnabai also fell sick as a result of that, she could not attend the hearing. The trial Court, on 26 -6 -1970, ordered the suit to be restored to file on condition that if the plaintiff paid Rs. 175 as costs to the defendant before the next date, which was fixed as 25 -7 -1970, the suit shall be restored but, it he failed to pay the full amount by the said date the suit shall stand dismissed. In the order -sleet dated 25 -7 -1970, the Court mentioned that the cost had not been deposited so far; but to await final report in the matter, the next date of hearing was fixed as 28 -8 -1970. On that dale, the amount of cost was deposited but no application for extension of the period or for condonation of delay in late depositing of the cost was made by the plaintiff. The trial Court held that since the plaintiff had failed to deposit the amount of cost within the period allowed, the restoration application stood dismissed. The plaintiff has, therefore, filed the present appeal under Order XLIII, rule 1 (c) of the Code of Civil Procedure.

(3.) The learned counsel for the appellant contended that the trial Court failed to exercise its jurisdiction properly in not condoning the delay in the special circumstances of the case when the plaintiff was insane and the suit was by the next friend and guardian. It ought to have condoned the delay by exercising its powers under Sec. 151 of the Code of Civil Procedure, more so when it was of only two days and the cost was also deposited before the passing of the order on 28 -7 -1970. The learned counsel for the defendant, on the other hand, contended that since the plaintiff had failed to deposit the cost by 25 -7 -1970 as per the order -sheet dated 26 -6 -1970, the application for restoration of the suit stood dismissed and thereafter, even if the cost was deposited on 28 -7 -1970, the trial Court had no jurisdiction to condone the delay. As such the order passed by the trial Court on 28 -7 -1970 was correct and requires no interference.