(1.) RESPONDENTS Nos. 1 to 3 (hereinafter referred to as "the plaintiffs") brought a suit for possession of land measuring two kanals and one marla situated in Khanpora, Tehsil Baramulla, in the court of the Sub -judge, Baramulla, on August 29, 1969. This suit was dismissed for default of the plaintiffs appearance but in the presence of the counsel for the contesting defendant, i.e. the petitioner herein, on February 17, 1971. An application to set aside the dismissal and to restore the suit was brought by the plaintiffs on the ground that their absence on February 17, 1971, was not wilful but was due to the fact that their counsel left Baramulla for Delhi on a private errand without intimating to them about his departure. By his order dated April 1, 1971, the Sub Judge, allowed the application and restored the suit to its original number. Aggrieved by this order the contesting defendant came up in revision to this court which was heard by Mian Jalal -ud -Din J. Observing that the suit had been restored without inviting objections from the contesting defendant and without seeing whether there was sufficient cause for its restoration, the learned Judge, by his order dated September 1, 1971, set aside the aforesaid order dated April 1, 1971, and directed the trial court to decide the restoration application "made by the plaintiffs afresh after affording an opportunity to the contesting defendant to file his objections in regard thereto and satisfying itself as to "the sufficiency of the cause for restoration." Pursuant to this order, Ghulam Rasool, the petitioner herein filed objections to the aforesaid application for restoration of the suit after which the parties were directed to adduce evidence in support of their respective stands. After recording the evidence, the learned Sub Judge, allowed the application subject to the payment of Rs. 30/ - as costs, which was ordered to be paid to the contesting defendant on the next date of hearing namely September 10, 1973. The learned Sub Judge further observed that if the costs were not paid to the defendant on the next date of hearingâ„¢; the application for restoration would stand dismissed with costs. On September 10, 1973, the counsel for the plaintiffs made an application seeking extension of time for payment of the costs by two days on the ground that the plaintiffs were residents of places outside Baramulla. This application did not find favor with the Sub Judge, who dismissed the same observing, inter -alia, that it was meant to protract the litigation and could not be allowed even on payment of additional costs in view of the previous order dated August 28, 1973, according to which it would be treated as consigned to the records. Aggrieved by this order, the plaintiffs went up in appeal to the District Judge, Baramulla, who allowed the same, set aside the order, allowed one weeks time to the plaintiffs to deposit the costs, and directed the trial court to restore the suit to its original number and to dispose of the same in accordance with law. Aggrieved by this order, the contesting defendant has come up in revision to this court.
(2.) APPEARING in support of the revision Mr. J. L. Choudhry has in the first instance submitted that the appeal filed by the plaintiffs -respondents Nos. 1 to 3 herein before the District Judge, Baramulla, was not competent. He has next contended that the costs not having been paid by the plaintiffs by September 10, 1973 the date originally fixed by the trial court, time for deposit thereof could not be extended either under section 148 or under section 151 C.P.C. He has in support of his second contention drawn my attention to two decisions of this court, viz. my decision, dated June 19, 1974, in Restoration Application No. 21 of 1973, entitled Mushtaq Ahmed V. Abdul Kashid, and the decision rendered on July 18, 1974, by Mufti J. in application for extension of time No. 35 of 1973 entitled Shri Balwant Krishen Kapoor Vs. State of Jammu and Kashmir and ors, where time for payment of costs was not extended. Mr. Malik has, on the other hand, urged that the aforesaid appeal filed before the District Judge, Bararnulla, against the order dated September 10, 1973, of the Sub Judge. Baramulla, was competent vs it was that order which really and finally rejected the application for restoration of the suit. He has in this connection relied upon two decisions reported in B. Sukhdeo Prasad V. B. Jagannath Prasad, A.I.R. 1945 Oudh, 273. And Chagan Raj and ors., Versus Sugan Mal and anr., A.I.R. 1958 Rajasthan, 237. With regard to the second contention raised by Mr. Chowdhry, Mr. Malik has urged that as the application for enlargement of time for deposit of costs was made by the plaintiffs before the expiry of the time allowed by the court, the court had ample powers to enlarge the time. He has in support of his contention relied upon a decision of the Supreme Court in Mahanth Ram Das V. Ganga Das, A.I.R. 1961 S.C. 882. I have given my careful consideration to the submissions made by the learned counsel for the parties.
(3.) SO far as the first contention regarding the maintainability of the appeal filed before the District Judge, Baramulla, against the order of the Sub Judge, Baramulla, dated September 10, 1973, raised by Mr. Chowdhry is concerned, I find no force in it. The learned Sub Judge passed a conditional order on August 28, 1973, and although he observed there in that if the plaintiffs failed to pay the costs on September 10, 1973, the application for restoration would stand rejected, he seems to have intended to pass the effective and absolute order on September 10, 1973, and that is why he ordered the case to be put up on that date. As such it was really by his order dated September 10, 1973, that the learned Sub Judge, finally disposed of the matter and dismissed the application for restoration, though in terms of the previous order. I am fortified in this view by the decisions in B. Sukhdeo Prasad V. B. Jagannath Prasad A.I.R. 1945 Oudh, 273, and Chagan Raj and ors. Vs. Sugan Mal and anr, A.I.R. 1958 Rajasthan, 237, the facts of which were analogous to those of the instant case. I am, therefore, of the opinion that the appeal filed by the plaintiffs - respondents before the District Judge Baramulla, was maintainable. The second contention raised by Mr. Chowdhry is also devoid of force. Under the order of the Sub Judge dated August 28, 1973, costs were to be deposited by the plaintiffs on September, 10, 1973 i.e. upto the last minute of the court hours on that day as held in Marakanda Sahu V. Lal Sadananda Singh, A.I.R. 1952 Orissa, 279. Before that time had run out the plaintiffs made an application for extension of the time which could not have been dismissed before the expiry of the court hours and that too in the arbitrary manner in which it was done by the Sub Judge. In Mahanth Ram Das V. Ganga Das, A.I.R. 1961 S.C. 882 (Supra) it was held by their Lordships of the Supreme Court that the court is not powerless to enlarge the time even though it had pre -emptorily fixed the period for payment if an application is made for extension of time before the time fixed has actually run out.