- (1.) Heard learned Counsel for the parties. The instant revision under section 115 of the Code of Civil Procedure has been filed against the order dated 7.4.2010 passed by Civil Judge (Senior Division), Lucknow, whereby the application, bearing Misc. Case No. 39-C/2010 filed by the revisionists under section 148 of the Code of Civil Procedure, was rejected.
(2.) Undisputed facts of the case are that a suit for recovery of the consultancy fee has been filed by the opposite party No. 2-Rail India Technical & Economic Services Ltd., which was numbered as Regular Suit No. 319 of 2002, against the revisionists. The said suit was decreed ex parte by the order dated 16.1.2006 in favour of the opposite party No. 2. Immediately thereafter, the revisionists filed an application under Order IX, Rule 13 read with section 151 of the Code of Civil Procedure for recalling and setting-aside the ex parte decree dated 16.1.2006, which was dismissed for want of prosecution by the order dated 25.4.2009. On 30.5.2009, revisionists filed an application for recalling the order dated 25.4.2009 along with an application under section 5 of the Limitation Act, which were allowed by the opposite party No. 1 with cost of Rs. 500 each (total cost of Rs. 1000/-) and the revisionists were directed to deposit the said cost within fifteen days, vide order dated 29.1.2010.
(3.) Pursuant to the order dated 29.1.2010, learned Counsel for the revisionists could not deposit the cost within time and as such, revisionists filed an application under section 148 of the Code of Civil Procedure along with the copy of tender for depositing the costs, which was numbered as Misc. Case No. 39-C/2010 with a prayer to condone the delay in making the payment of cost and further for passing the tender so that the costs be made good, to which opposite party No. 2 filed an objection. The said application (Misc. Case No. 39-C/2010) was rejected by the order dated 7.4.2010. Feeling aggrieved, the revisionists preferred the instant revision. Learned Counsel for the revisionists submits that he has taken a plea in the affidavit in support of the application under section 148 of the Code of Civil Procedure that the revisionists have failed to note down the period for depositing the costs and as such, the costs could not be paid within the stipulated time granted by the Court and further as there has been holiday since 27.2.2010 till 2.3.2010 and Court remained closed and thereafter the revisionists' Counsel did not allow the Court from 3.3.2010 to 5.3.2010 as he fell ill, but the Court below did not consider the said submission and rejected the application under section 148 of the Code of Civil Procedure.;