Mt. Radhabai v. Mt. Purnibai

1. In this case the plaintiff obtained an adjournment on condition that she should pay costs Rupees 10-0-0 and she was informed that if she failed to pay Rs. 10-0-0 on the date of the next hearing, her suit would be dismissed. The next hearing took place more than two months later, on 29th September 1941. The order-sheet of that date runs as follows:

Parties as before. Plaintiff is unable to pay the costs which were a condition precedent. Suit dismissed therefore, vide, 47 All. 5381. Plaintiff to pay defendant's costs. Pleader's fees Rs. 15-0-0 if certified. Plaintiff's costs Rs. 6-12-0, defendant's costs Rs. 41-12-0.

2. On 8th October 1941, the plaintiff filed an application for restoration of her suit, saying that she was unaware that the payment of costs was a condition precedent and that on 29th September 1941 the Court was very busy and the case of the applicant could not be reached until 5 P.M and that the counsel could not be found at the time when the case was called.

3. Then follow the material words:

The applicant had only Rs. 5-0-0 along with her then, which she offered and prayed to the Court that as the case was being adjourned she will pay the balance on the next hearing as she did not know that the payment of the costs was condition precedent.

4. Then it is said that before her counsel could come to Court the suit had been dismissed, and that after the dismissal the counsel came and offered to pay the amount of costs for her. The allegations of the plaintiff were entirely denied by the other side, and it was said that the application did not lie. On this the learned Judge of the lower Court passed the following order:

My order was under O. 17, R. 1 of the CPC, and it seems to me that one more chance should be allowed to the applicant on payment of suitable costs. I shall restore the suit if Rs. 20-0-0 costs are paid to non-applicant's counsel. They are made a condition precedent.

5. Accordingly, on 23rd December 1941, Rupees 20-0-0 were tendered to the defendant's counsel who refused to accept these costs and has made the present application in revision against the order of the learned Judge of the trial Court restoring the suit. It has been decided by Gruer, J. in a case reported in 1940 N.L.J 1042 that O. 17, R. 3 is wide enough to cover conditions if the adjournment costs are not paid, and that under this rule an order of dismissal of a suit can be made and carried out. It is also said that O. 17, R. 3 does not restrict O. 17, R. 1, i.e, in such a case the suit has not got to be determined on materials other than the fact of non-payment of the adjournment costs. But the question arises as to what remedy is open to the plaintiff if such a suit is so dismissed. The learned advocate for the applicant says that in such cases an appeal lies from the order of dismissal, and that the order of dismissal is to be treated as analogous with an order of dismissal resulting from the application of O. 17, R. 3. The non-applicant says that no appeal lies and that under Section 161 of the CPC, the Court should entertain an application for restoration.

6. The definition of decree excludes the dismissal of a suit for default. But I do not consider that the words “dismissal for default” in this definition of the word “decree” refer to a case of this nature. I think they refer to those cases of dismissal for default with which the Code specifically deals. I have not been able to find any authority on the point whether an appeal lies when the suit is dismissed because adjournment costs have not been paid, but I find that in 48 Cal. 9023 it was assumed that in a case where an order was passed that the suit should stand dismissed if adjournment costs were not paid by a certain date, an appeal would lie. The following remarks occur at page 905:

If that order had contained the words ‘In default the suit will stand dismissed’, I should have thought that as from that date the suit in the circumstances was dead and that irrespective of subsequent proceedings and any question as to the drawing up of the order, the Court could not revive the suit in the absence of any appeal from the order of 10th April 1919.

7. This passage clearly illustrates that the Calcutta High Court has taken the view that an appeal lies from the dismissal of a suit for failure to pay adjournment coats. It appears to me therefore that there is no justification for restoring the suit in virtue of inherent power, exercising some kind of inherent jurisdiction analogous with that provided by O. 9. It is interesting to observe how the application for restoration is drafted. The references to the attempt of the woman's husband to find an advocate and the advocate coming into Court just after the order of dismissal had been passed are designed to produce some kind of analogy with the dismissal of a case in default of appearance. It appears to me that when the suit was dismissed on 29th September 1941, no restoration of the suit could be made by exercise of inherent power of the Court. I would also remark that the decision of the Calcutta High Court to which I have referred is fully in accordance with the decision of Gruer, J. reported in 1940 N.L.J 104, on the question of the power of the Court to dismiss a suit for non-payment of adjournment costs.

8. Now, no doubt the application made by the plaintiff could have been treated as an application for review, but it does not appear to have been so treated. It appears to me quite clear from the application made by the plaintiff that when the case was called on for hearing she had not got the money. She clearly says that she had brought Rs. 5 instead of Rs. 10 and that she was not aware of the nature of the order. If this were so, (and it is prima facie most unlikely), she had obviously been lacking in diligence. It was also a circumstance which she should have brought to light at the time when the final order dismissing the suit was passed. She says she brought it to light. This is not a new and important matter which after the exercise of due diligence she was unable to discover by 29th September 1941. It is prima facie incredible that her counsel had failed to inform her of the order. With the help of her husband she could have easily prepared an application to extend the time if she was short of money. Now, it is said that after the case was over her advocate came into Court and offered to pay the money for her. But this is denied by the other side. I do not consider that this would be any ground for reviewing the order when the plaintiff had two months to collect the money. In these circumstances, I do not consider that it would be right to remand the case so that the learned Judge of the trial Court should treat the application as an application for review, and I consider that the order of the learned Judge of the lower Court restoring the suit in the exercise of its inherent power was ultra vires and should be set aside. The application is therefore allowed with costs.

9. Application allowed.