BHURIA Vs. NARAIN

JUDGEMENT

(1.) This application in revision wrongly styled as an appeal has been filed against an order of the learned Additional Commissioner, Jaipur, dated 19.1.56 and arises out of the following circumstances.

(2.) The applicant had filed an appeal before the learned Additional Commissioner against the decree of the S. P. O. Alwar. This appeal was dismissed on 26.7.55 as on this date the applicant did not appear ether in person or through his counsel in the court of the Additional Commissioner. On 27.7.55, the applicant filed an application for restoration of the appeal. The learned court was satisfied that there was sufficient cause for non - appearance of the applicant and therefore, allowed the application for restoration of the appeal on condition of payment of Rs. 15/ - as costs on the next date fixed for the readmission of the appeal. The applicant, however, did not pay the costs on 27.2.56 on which the appeal was to be heard. On 19.9.56, the applicant, however, stated before the court that he was unable to pay the costs as he was a poor man. Thereupon, the learned Additional Commissioner struck off the appeal for non -fulfilment of the condition precedent to the re -hearing of the appeal. It is against this order that the applicant has come before us in revision. The contention of the learned counsel for the applicant is that he could not arrange to deposit the costs within the stipulated period fixed by the court, but he was now in a position to deposit the same and therefore in the interest of justice the lower court be directed to re -admit the appeal on recovery of the costs from the applicant. This contention is without any force. An order for restoration of a suit or an appeal dismissed for default on condition of payment of costs to the opposite party within a time fixed by court and directing that in case of default the application for restoration is to stand dismissed is perfectly legal and valid. The effect of such a conditional order is that the application stands dismissed and the court thereafter becomes functus officio and cannot extend time for payment of the costs. The lower court was perfectly justified in rejecting the appeal for non -fulfilment of the terms as to costs on which it had directed the appeal to be readmitted. An order of this nature is not open to revision unless the requirements of sec. 115, C. P. C read with sec. 230 of the Rajasthan Tenancy Act are satisfied. In the case before us, the learned counsel has not been able to satisfy us that any of the conditions referred to in sec. 115, C.P.C. or in sec. 230 of the Rajasthan Tenancy Act exist. The application is accordingly dismissed.