R. R. Rastogi, J. - (1.) THIS is plaintiff's appeal from an order. The brief facts are these. The plaintiff-appellant filed a suit for partition and accounting. The suit is of a high valuation. There were eight defendants to the suit. One written statement was filed by defendant no. 1 and another by defendants 7 and 8. It appears that a gift had been made by defendant no. 1 in favour of defendants 7 and 8. The plaintiff challenged the validity of that gift deed and so these defendants controverted the plaintiff's challenge.
(2.) ON 2-1-1975 the suit was dismissed in plaintiff's default. ON 30-1-75 be moved an application for restoration of the suit under Order 9 Rule 9 CPC. That application was allowed by an order made on 15-4-75. The operative part of the order was as under :- "In the circumstances the application is allowed on payment of Rs. 100/-as costs to each set of the contesting opposite parties. If cost is paid within 10 days, the suit is restored to its original number, failing which the application shall stand rejected." Under this order, therefore, the payment of cost was required to be made by 25-4-75. The plaintiff was to pay Rs. 100/- as costs to each set of the contesting defendants. There were two sets of contesting defendants. Defendant no. 1 constituted one set and defendants 6 and 7 constituted another. The plaintiff did not pay the costs as directed and on 25-4-75, i. e. the date by which he was required to comply with the aforesaid order, he moved an application in which two prayers were made. The first prayer was for clarification of the order in regard to payment of costs because according to the plaintiff-appellant both the sets of the contesting defendants had engaged only one counsel in the case and, therefore, he was liable to pay only one set of costs. The second prayer was for reducing the amount of costs. This application was opposed by defendant no. 1 as also defendants 7 and 8. The court below first addressed itself to the question as to whether it had jurisdiction to entertain this application and, relying on a decision of this Court in Gaya Din v. Mata Prasad, 1936 AWR 414 took the view that since in the event of non-compliance the operation of the order was automatic, the court became functus officio and could not extend the time for payment of costs under section 148, CPC. On that view in its opinion the application was liable to be rejected, However, it addressed itself to the merits of the case as well and found that the order was clear. There were two sets of contesting defendants and payment of Rs. 100/- as costs to each of the two sets was quite reasonable keeping in view the high valuation of the suit. Thus, in the opinion of the court below the application had no force and hence it rejected it on 6-5-75. By means of a separate order made on the same day the court below rejected the application for restoration as well. That order reads :- "Since the order of the court had not been complied with, the application for restoration stands rejected. Therefore consign the record." Aggrieved the plaintiff filed the present appeal. To complete the narration of events it may be mentioned that on 13-5-75 the plaintiff made two applications before the court below. By one application he prayed for preparation of a formal order so as to enable him to file an appeal against the order made on 6-5-75. By the other application he prayed for extension of time under Sec. 148 CPC for payment of costs. The second application was rejected on 18-9-1975. The plaintiff filed a revision against that order which was abated. He then filed a writ petition which was dismissed on the ground that he had availed of the remedy of filing an appeal.
(3.) IN our opinion in view of the fact that the court below by means of a separate order made on the same day, i.e. 6-5-75, rejected the restoration application, the present appeal would be maintainable under Order 43 Rule 1(c) CPC. The question which falls for our consideration, however, is as to whether on merits any ground had been made out for extension of time for payment of costs. It was stressed before us by Sri M. P. Singh, learned counsel for the plaintiff-appellant, that the court below having conditioned its approach to the application by a wrong conception of the legal aspect, did not exercise its discretion judicially in not extending the time for payment of costs which order should have been made as a necessary corollary to the rejection of the application for reduction of the amount of costs. On the other hand, according to the learned counsel for the defendants-respondents Sri S. N. Verma, the court below applied its mind to the facts of the case and found that there was no justification for reducing the amount of costs and since no prayer had been made by the plaintiff-appellant to extend the time for payment of costs, the inevitable result which was to follow was rejection of the restoration application itself. After hearing learned counsel we are of the view that there is considerable merit in the case of the plaintiff-appellant. It may be noted that the payment of costs was to be made by 25-4-75. Instead of compling with that direction the plaintiff made an application for clarification and reduction of the amount of costs. The court below could have passed an order on that very day making It clear that the plaintiff was required to pay Rs. 100/-as costs to each of the two contesting defendants. In the order passed on the restoration application the number of the sets of contesting defendants was not specified. Anyhow, when this application was directed to be put up for hearing on 3rd of May, 1975, the court below made an observation that the disposal of the application on that date would be without prejudice to the rights of the defendants which may have accrued to them on account of non-compliance of the Court's order dated 15-4-75 by the plaintiff. Ultimately the application was disposed of on 6-5-75. The initial approach made by the court below in holding that it had no jurisdiction to extend time was erroneous because the decision in Gya Din's case has been over-ruled by a Full Bench in Gobardhan Singh v. Barsati, 1972 AWR 1 (FB). It would appear, therefore, that the very initial approach of the court below was wrongly conditioned. Further, when oh merits it found that there was no case made out for reduction of the amount of costs and that the plaintiff was to pay costs to both the sets of the contesting defendants, it should have in exercise of its inherent jurisdiction of suo moto acting under Sec. 148 extended the time. That should have been the natural consequence of the order rejecting the plaintiff's application for clarification and reduction of the amount. The approach of the court below was rather too technical in the matter.;