BAGSAR MISSIR Vs. RAMJATAN RAY

JUDGEMENT

(1.) This is an application against an order refusing to restore a miscellaneous case which, according to the learned Munsif, was automatically dismissed for non-payment of costs. The facts are these. The petitioners filed a Title Suit (Title Suit No. 46 of 1949) in the Court of the 1st Munsif at Buxar, and it came up for hearing on 8-7-1953. Both parties filed petitions for time, but their prayers were turned down and the suit was dismissed. The petitioners then filed an application under Order 9, Rule 4, Civil P. C., for restoration of the suit to its original file. The matter was heard and the application of the petitioners was allowed on 2-6-1954, on condition the petitioners paid Rs. 20/-as costs to the defendants by 10-6-1954. The order was communicated to the petitioners by their lawyer on 4-6-1954, but, unfortunately, the letter was not received till 15-6-1954. The petitioners then approached the Court on 18-6-1954, with two prayers embodied in two separate petitions. The first prayer was for an indulgence for time to deposit the costs and the other one for restoration of original order, dated 2-6-1954. The learned Munsif has held that, after having passed the order on 2-6-1954, he had no jurisdiction either to accept the costs from the petitioners or to restore the suit to the original file.

(2.) It has been argued on behalf of the petitioners that the learned Munsif had no jurisdiction to put terms to his order allowing restoration, of the suit under Order 9, Rule 4, Civil P. C. He has drawn my attention to the provisions of Order 9, Rule 9 and Order 9 Rule 13, where the Court has been empowered to make an order setting aside a dismissal or a decree upon such terms as to costs or otherwise as it thinks fit. In Order 9, Rule 4, it is stated that, if the plaintiff satisfies the Court that there was sufficient cause for his non-appearance, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. There is no provision in Order 9, Rule 4 for any term as to costs which could be imposed by the Court while restoring a suit and setting aside a dismissal under Order 9, Rule 4. In Krishna Vithal Poole v. Ganesh Bhaskar Tilak, ILR ,26 Bom 201 (A) neither party appeared on the date fixed for hearing of the case and the Court dismissed the suit for default with costs. On a later date the plaintiff showed cause, which was sufficient in the opinion of the Court, and the suit was then restored to the file. In setting aside the order of dismissal and in ordering the suit to be restored to the original file, the Court directed all the costs in the suit and of the application to be borne by the plaintiff. Ultimately, a decree was passed in favour of the plaintiff, but he was ordered to pay the costs of the defendant as allowed on the application for restoration of the suit. An appeal from that decree being unsuccessful, the plaintiff preferred a second appeal to the High Court, and it was argued on behalf of the plaintiff-appellant that the Court, having found that the plaintiff was prevented by sufficient cause from appearing to Court, the dismissal order should have been set aside without any order as to costs, because Section 99 of Act 14 of 1882 (Order 9, Rule 4, Civil P. C.) did not give Jurisdiction to the Court to decide the question of costs of the suit. Their Lordships marked the difference between Section 99 (Order 9, Rule 4) and Section 103 (Order 9, Rule 9) with respect to passing any term as to costs and observed as follows:

(3.) In the circumstances the application succeeds and the order of the learned Munsif dated 20/8/1954, is set aside. The suit now stands restored in the original file and the learned Munsif should now proceed with it according to law. There will be no order as to costs.