KALI PRASAD TEWARI Vs. PARMESHWAR PRASAD MARWARI

JUDGEMENT

(1.) This is a defendant's application in revision from a decree of the Court of Small Causes. The suit had been adjourned on several occasions on account of the nonpayment of process-fee by the plaintiff. On 7 December 1927, the Court dismissed the suit for the plaintiff's default of the payment of the process fee. The expression used by the learned Judge was "thrown out for plaintiff's default." On 13 February 1928, the plaintiff applied under Order 9, Rule 4, Civil P.C., for the setting aside of the dismissal. The report of the office also indicated that the suit had been dismissed on account of the nonpayment of the process-fee. On 24th February 1928, the suit was restored to its original number on the file and on that date the process fee was paid by the plaintiff. Although the language used by the Judge of Small Cause Court was not explicit there is no doubt that the suit was dismissed on account of the nonpayment of the process fee. The plaintiff himself treated the dismissal as such because he applied under Order 9, Rule 4. The application for restitution of the case was filed more than 30 days after the date of the dismissal, and was beyond time under Art. 163, Lim. Act.

(2.) The only point that remains for consideration is whether the time could be extended by the Court under Section 5, Lim. Act. That section does not apply to all applications but only to those that are expressly provided for therein It applies to an application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force. The application in question was made under Order 9, Rule 4 and, there is no express provision in that order which makes Section 5 applicable to such application, as for instance is to be found is Order 22, Rule 9. Sub-clause (3).

(3.) I must therefore hold that the Court had no jurisdiction to extend the period of 30 days which had expired. A somewhat similar view has been expressed by the Rangoon High Court in Ma Naw Naw V/s. E.S.S.M. Somasundaram Chetty A.I.R. 1925 Rang. 187 with regard to applications under Order 9, Rule 13 Civil P.C., which are governed by Art. 164.