BAJRANGLAL JHUNJHUNWALLA Vs. SOLAKI MARWARINI

JUDGEMENT

(1.) THIS is a rule against an order of the Munsiff of Asansol in relation to a proceeding under Order 9, Rule 9, Civil P. C. On 30th January 1950, he passed the following order : 'That the miscellaneous case be allowed on contest provisionally. The petitioners to pay Rs. 35 to the opposite party No. 1 by 10th February 1950 upon which the suit will be restored to file, In default, the miscellaneous case shall stand dismissed.'

(2.) ON 10th February the petitioner in the miscellaneous case asked for further time to deposit the amount of Rs. 35. This was refused, the order being, 'the petitioner must pay the money to -day failing which the miscellaneous case stands dismissed. The petition is rejected.' Later on, on the same day the petitioner filed another petition asking for one day's time only to deposit the money. The order is, 'Heard pleader. The prayer is considered and time is allowed, 11th February 1950 for depositing the amount failing which the miscellaneous case shall stand dismissed,' in other words, after hearing the parties the Munsiff finally granted one day's extra time. He had seisin of the case and, in fact, the parties were present and were heard on the question.

(3.) IN my opinion, however, it is clear from the order of 30th January that it was in part of a provisional nature as the learned Munsiff himself expressed it. I do not think it can be said that he had entirely by his order divested himself of the power given under Section 148, Civil P. C., to alter the form of his provisional order, that is to say, to extend the time. On 10th February he first passed the order saying that the amount must be paid within that day and then finally allowed a day, each time repeating that on failure of deposit the suit will stand dismissed.