GAYA DIN Vs. LALTA PRASAD

JUDGEMENT

(1.) This is an application in revision by a plaintiff against an order of learned Munsif of Kanauj dismissing his application for restoration of a suit which was dismissed for default. The plaintiff's suit was dismissed for default on 12 April 1934 the date which was fixed for the final hearing of the suit. On 13 April 1934 an application was made by the plaintiff for restoration of the suit: this was followed on 15 September 1934 on condition of payment of Rs. 8 for costs to the opposite party on or before 27 October 1934. In case of default the application was to stand as dismissed. Rs. 4 were paid on 15 September 1934 to the opposite party and the balance was not paid up to 27 October 1934. On 29th October 1934 an application was made on behalf of the plaintiff for permission to pay the balance and for direction to the opposite party's counsel to receive it. The learned Munsif dismissed this application on the ground that he had no power to extend the time for payment of costs. The first point that arises for consideration in this case is whether a conditional order such as passed in this case could have been validly passed under Order 9, Rule 9.

(2.) Rule 9 lays down that if the plaintiff satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. The rule makes a clear provision for the passing of a conditional order. A doubt was expressed about the validity of such an order in Jagarnath Sahi v. Kamta Prasad 1914 36 All 77. It was observed: It seems to us that the provisions of Order 9, Rule 13 do not contemplate the passing of a conditional order such as to have an effect analogous to that of a preliminary decree in a suit for pre-emption or on a mortgage.

(3.) This doubt has been cleared by the decision in Ahmad Husain V/s. Har Dayal 1926 48 All 199. There it was held that an order restoring a case dismissed for default on condition of the payment of a reasonable amount of costs to the opposite party within a time fixed by the order was not an illegal order but on the contrary was an order contemplated by Order 9, Rule 13, Civil P.C. The order being legal and valid the next question is what was the effect of the order on the expiry of the time fixed for the payment of the costs. As already stated the order was that in case of default of payment of the costs up to 27 October 1934 the application would stand dismissed. The effect was that as soon as the time fixed in the order expired the application stood as dismissed and the Court no longer remained seized of the application. Learned Counsel for the applicant relies on Section 148 which relates to enlargement of time. It lays down: Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code the Court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may have expired.