Sukhdeo Prasad v. Jagannath Prasad — 1945 DIGILAW 108 (ALL)

JUDGMENT Ghulam Hasan and Kaul, JJ. - This is a miscellaneous civil appeal under Order XL1II rule 1 (c) of the CPC against the order dated the 26th October, 1943, passed by the Civil Judge of Mohanlalganj, Lucknow. The appeal is filed by the plaintiff. 2. The plaintiff filed a suit for partition as long ago as the 4th August, 1942. Issues were framed on the 24th February, 1943, and the case was fixed for evidence on the 19th March, parties being directed to summon their evidence within three days as the case was an old one. On the 9th March the defendant filed an application to amend his written statement and to have another issue framed in the case. Notice of this was given to the plaintiff for the 19th March. The 19th March being a holiday, the case was taken up on the 20th March. The plaintiff being absent, the suit was dismissed for default. 3. On the 30th March an application to set aside the dismissal of the suit was made presumably under Order IX rule 9 of the Code of Civil Procedure. The ground of the application was that the plaintiff was an Excise Inspector in Bansgaon, district Gorakhpur, and his counsel could not attend Court owing to illness. On the 7th August the Civil Judge passed the following order: This case was to be taken up on 19-3-1943 for evidence. But it was declared a holiday and it was taken up on 20-3-1943. The defendant appeared. The Counsel for plaintiff was ill and the plaintiff was at Gorakhpur. The clerk of plaintiff's Counsel appeared. The application is therefore allowed on condition that the plaintiff pays Rs. 25 as costs within a week. Fix 27-9-1943 for evidence for plaintiff and 28-9-1943 for the defendant. 4. The money was, however, not-deposited by the 14th August, which was the last date. The 16th to 17th August were holidays and an application was made on the 18th August offering the money and praying to the Court to accept the deposit. 25 as costs within a week. Fix 27-9-1943 for evidence for plaintiff and 28-9-1943 for the defendant. 4. The money was, however, not-deposited by the 14th August, which was the last date. The 16th to 17th August were holidays and an application was made on the 18th August offering the money and praying to the Court to accept the deposit. The ground given in the application was that the plaintiff, who was personally present in Court on the 7th August, on return to Gorakhpur sent a money order to his pairokar at Lucknow which was received there on the 14th August at about 3-30 P. M., that as the money could not be deposited at that time in :Court, the pairokar sent Babu Nanak Saran clerk of Mr. Banerji Barrister to the defendant's house with the money. The defendant was not present but his son was told to send him to Mr. Banerji's office to receive the money, the office being situate at a . distance of two minutes' walk from his house. The defendant did not come to take the money inspite of another message being sent to him. The plaintiff alleged that the defendant was deliberately refusing to accept the money. The Civil Judge ordered : Let it be deposited on the responsibility of applicant and subject to the objection of the opposite-party. 5. The defendant filed a reply to this application on the 27th September, the date fixed for evidence in which he objected that the delay in depositing the amount could not be condoned, as there was no case pending before the Court, and he prayed that the case should stand dismissed and no further proceedings be taken. It is significant that the statements in plaintiffs application were not controverted. It may be mentioned that no evidence had been summoned for this date by the defendant. 6. The Civil Judge observed that the plaintiff's application dated the 18th August was not supported by an affidavit, no reason was given why the money order was mot sent earlier, why it was not sent direct to the defendant /and on what date it was sent. 6. The Civil Judge observed that the plaintiff's application dated the 18th August was not supported by an affidavit, no reason was given why the money order was mot sent earlier, why it was not sent direct to the defendant /and on what date it was sent. He then passed the following order : Under these circumstances I do not think I have jurisdiction to extend the time of the paying of cost and even if I had jurisdiction I do not think any sufficient reason has been made out to justify the extension of time. The restoration application of the plaintiff, therefore, stands dismissed and no further proceedings can be taken in this suit. 7. The plaintiff filed another application on the 6th November purporting to be u/s 148 of the Code of Civil .Procedure stating that the delay M one day in depositing the money was quite accidental and was due to no fault of the plaintiff and prayed that the Court be pleased to pass an order u/s 148 extending the time to deposit the money till the 20th August when the money was deposited in the Imperial Bank of India, Lucknow. One money order receipt was filed in (support of the-application showing that a sum of Rs. 50 was sent by the plaintiff from Gorakhpur on the 11th August 'to Puran' Lal contractor. The acknowledgment of the money order was received by the plaintiff at Gorakhpur on the 16th August. This application was dismissed on the 10th December. 8. On the same date another application was filed u/s 151 of the CPC for review of the order dated the 26th October. This application was also dismissed, 9. A preliminary objection has been taken that no appeal lies. There is no force in this objection. The order dated the 7th August was in its nature and content not a final order. The Civil Judge did not say that if the money was not deposited within a week, the suit shall stand dismissed without any further order on the part of the Court. On the other hand, -the order dated the 26th October, which (is the subject of appeal, clearly shows that the application for restoration was dismissed for the first time on that date. On the other hand, -the order dated the 26th October, which (is the subject of appeal, clearly shows that the application for restoration was dismissed for the first time on that date. It is true that in the order under reference the Court had refused to extend the time both on the ground that it had no jurisdiction to *do so and also on the ground that no sufficient reason had been shown to justify the extension of time. In substance, however, the order in question was an order under rule 9 of Order IX of the CPC rejecting an application for an order to set aside the dismissal of a suit and falls within the purview of Order XLIII rule 1 (c). If the order under appeal, upon a true interpretation, is an order dismissing the application for setting aside the dismissal of the suit, as it undoubtedly appears to be, there can be no doubt that the order is appealable under Order XLIII rule 1 (c).. 10. It is contended that the order falls under rule 2 of Order XVII of the CPC and is not appealable. Rule 2, however, itself says that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. 11. It is open to the Court, therefore, under rule 2 to take action under Order IX and if the Court does act under Order IX there can be no doubt that its order will fall under Order XLIII rule I (c) of the Code of Civil Procedure. It is not denied that a right of appeal does exist against an order under Order IX rule 9 of the Code of Civil Procedure. None of the cases cited for the respondent is applicable to the present case. 12. In Raghubar Dayal v. Sankatha Bakhsh A I R 1936 Oudh 125 : 1935 O W N 706 the order was : If the applicant deposits or pays Rs. 50 to .. the Counsel of the opposite-party on or before 2nd October 1933, the appeal shall be restored, otherwise it shall stand dismissed. Put up on 3rd October, 1933. 13. In Raghubar Dayal v. Sankatha Bakhsh A I R 1936 Oudh 125 : 1935 O W N 706 the order was : If the applicant deposits or pays Rs. 50 to .. the Counsel of the opposite-party on or before 2nd October 1933, the appeal shall be restored, otherwise it shall stand dismissed. Put up on 3rd October, 1933. 13. The applicant deposited the money on the 3rd October and upon the opposite-party's refusing to take it the Court dismissed the application for restoration of" the appeal, holding that it had no power to restore the application. In appeal against this order a Bench of this Court (King C. J., and Nanavutty, J.) approving of the decision in Surajpal Singh v. Deokali A I R 1926 Oudh 481, held that the lower Court had no jurisdiction to extend the time prescribed for the payment of the amount and was right in holding that it had no power to set aside the dismissal. The ground of the decision was that the order dismissing the application for restoration was not a fresh order but it merely gave effect to the previous conditional order. Refer- ring to the decision in Jagarnath Sahi v. Kamta Prasad Upadhya (1913) 36 All. 77 the learned Judges remarked that the principle of that decision was not applicable to the case before them as the effect of non- payment of the sum due to be paid as damages in the Allahabad case was not declared and therefore the Court had jurisdiction u/s H8 of the CPC to extend the time for payment of damages as the Court had not become functus officio or to pass a fresh conditional order for setting and the ex parte decree upon payment of such sum of money as the Court thought fit. 14. In Jagarnath Sahi's case upon an application to set aside an ex parte decree the Court passed an order conditional upon the applicant's paying to the plaintiff, 'by a certain date, a sum of money as damages. This condition was not fulfilled and the Court disallowed the application holding that it had no jurisdiction to receive the prescribed payment .after the dale fixed. It was held by Ryves and Piggot JJ. This condition was not fulfilled and the Court disallowed the application holding that it had no jurisdiction to receive the prescribed payment .after the dale fixed. It was held by Ryves and Piggot JJ. that an appeal lay from the order and the Court below had jurisdiction to extend the tune for payment of the damages or to pass a fresh conditional order setting aside the' decree upon terms, the original order having become inoperative. 15. In Nand Lal v. Kishori (1914) 12 A L J 1270 the order was for setting aside the dismissal of a suit for default on condition of the plaintiff paying a certain amount of damages to the defendants, and on failure to do so the application was to stand dismissed. It was held by Chamier and Piggot JJ. that the Court intended to and did completely dispose of the application for restoration of the suit and the order was therefore appealable. The decision in Jagarnath Sahi's case was referred to and was not dissented from. The Bench, however, did not commit itself to the view expressed in Jagarnath Sahi's case that the proper form of order in such a case should be one simply directing the plaintiff to deposit a sum within a week and reserving the passing of a final order on his application until the prescribed period had expired. 16. All that was held in Ahmad Husain Khan v. Hardial A I R 1926 All. 142 was 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 IX rule 13 of the Code of Civil Procedure. Referring to Jagarnath Sahi's case the learned Judges held that the real question in that case was as to the order from which an appeal lay and did not express any dissent from the view taken therein. They referred to Nand Lai's case also as expressing a doubt about the correctness of the view taken in regard to the form of the order in Jagarnath Sahi's case but here again the learned Judges did not commit themselves. 17. Two decisions of the Madras High Court in S.S. Balakrishna Iyer and Another Vs. They referred to Nand Lai's case also as expressing a doubt about the correctness of the view taken in regard to the form of the order in Jagarnath Sahi's case but here again the learned Judges did not commit themselves. 17. Two decisions of the Madras High Court in S.S. Balakrishna Iyer and Another Vs. Parvathammal and Another, AIR 1928 Mad 154 , and Dadamudy Tatayya and Others Vs. Kelachina Venkatasubbarayya Sastri, AIR 1928 Mad 786 , may be referred to. The former was relied upon by the appellant -and the latter by the respondent. It was laid down in the former case that where an order is passed allowing an application upon certain terms and providing that if within the time allowed those terms are not complied with, the application shall automatically, and without further inter- position by the Court, stand dismissed, no further order of Court is necessary to effect dismissal of the application. One of the learned Judges constituting the Bench Curgenven, J. after referring to the English cases observed : The test to determine, in case of this nature, whether power still exists to extend time is, in my view, whether the proceeding in which time was originally granted is still pending or has been disposed of. 18. The order in that case was one calling upon the applicant to give security for staying an administration suit within three months otherwise the petition shall stand dismissed with costs and it was, therefore, rightly held that the Court could not extend time. In this case it was also observed that the proper remedy of the applicant was to apply for review to the Court passing the conditional order. 19. The second Madras case was decided by a single Judge. The facts were that the Court had granted the plaintiff an adjournment upon payment of costs be ore the date of the next hearing. The costs were not paid and the Court-refused to allow the plaintiff to cross-examine the defendant's wit- nesses. The learned Judge interpreted the order as meaning that if the costs were not paid, the party ordered to pay costs could not be heard. The learned Judge further observed that it was not necessary for the Court to have added that in default of payment the plaintiff will not be allowed to cross-examine witnesses. 20. The learned Judge interpreted the order as meaning that if the costs were not paid, the party ordered to pay costs could not be heard. The learned Judge further observed that it was not necessary for the Court to have added that in default of payment the plaintiff will not be allowed to cross-examine witnesses. 20. The test laid down by Curgenven J. in the Madras case was accepted by a Bench of the Patna High Court in Surajmal Marwari and Another Vs. Bhubaneshwar Prasad and Others, AIR 1940 Patna 50 . In this case the order was that the plaintiffs must file deficit court-fee within a fortnight other- wise they will not be entitled to have the aforesaid decree and the suit will be dismissed. It was held that a final owner had not been passed, in the suit and so the Court, hiving still relined control over the proceedings hid jurisdiction to accept the deficit court-fee after the period fixed u/s 148 of the Code of Civil Procedure. 21. Even if the matter were open to doubt, there will be no difficulty in treating the appeal as a revision u/s 115 of the Code of Civil Procedure, as it is clear that hiving regard ' to the facts and circumstances set out above, the Civil Judge erred in dismissing the application. After passing the order in question the Court had not become functus officio and the proceedings were not defunct. No penalty in the event of non-compliance with the order within the time prescribed was imposed and it appears to have been the intention of the Court to pass another order dismissing the application upon the non-fulfilment of the condition. The Court therefore had a clear jurisdiction to extend the time, which it erred in declining to exercise. The circumstances of the present case show that the money was sent by the plaintiff on the 11th August and it could not have reached Lucknow earlier than the 11th as stated by the plaintiff and shown by the acknowledgment received on the 16th August by the plaintiff at Gorakhpur. It is true that these documents were filed late but there can be no doubt that the receipt is genuine. It is con- tended on behali of the defendant that there to nothing to show who Puran Lal contractor was and why Rs. 50 instead of Rs. 25 were sent. It is true that these documents were filed late but there can be no doubt that the receipt is genuine. It is con- tended on behali of the defendant that there to nothing to show who Puran Lal contractor was and why Rs. 50 instead of Rs. 25 were sent. We do not think that this contention has any value. It is clearly stated by the plaintiff that the money was sent to the pairokar for the purpose of being paid to his counsel Mr. Banerji and that Mr. Banerji's clerk actually made efforts to pay the money to the defendant but he declined to take it. These facts were not even denied by the defendant in his reply dated the 27th September. The time granted was just a week, /the delay, was only for a day and considering that the plaintiff was working in Gorakhpur and hid to arrange the money within a short time it cannot be said that the delay was un- reasonable. The Civil Judge objects why the money was not sent to the defendant direct but it is more than probable that he would have refused to to take it on the same flimsy ground which he urged subsequently. 22. Accordingly the appeal is allowed with costs in both the Courts and the suit is restored. The Civil Judge is directed to re-admit the suit to its original number and dispose it of according to law.