- (1.) ASHOK Bhushan, J. Heard Shri Haider Hussain, Counsel for the petitioners and Shri Srikant appearing for respondents.
(2.) BY this writ petition the petitioners have prayed for quashing the order dated 5-7-1984 (Annexure-3 to the writ petition) passed by 2nd Additional District Judge, Fatehpur in revision filed against the order of trial Court dated 22-10-1983. Brief facts necessary for appreciating the controversy between the parties is as follows : A suit No. 399 of 1979 was filed by the petitioner-plaintiffs against the defendant-respondents. Suit was dismissed in default by the order dated 28-3-1981. Plaintiffs moved an application for restoration of the suit under Order 9 Rule 9 of Code of Civil Procedure on which Misc. Case No. 38 of 1981 was registered which too stood dismissed for default on 5-5-1981. Application 4-C was filed for setting aside, the order dated 5-5-1981 which was rejected on 24-5-1982. Against the order dated 24-5-1982 a Civil Appeal No. 21 of 1982 was filed which appeal was allowed by the appellate Court vide its order dated 29-11-1982. The order of the trial Court rejecting the restoration application was set-aside the appellate Court further directed for allowing the restoration of Misc. Case No. 38 of 1981 on payment of Rs. 30 as cost which was required to be paid within 15 days. After the order dated 29-11-1982 of the appellate Court, the records were sent to the trial Court. In the trial Court an application was filed by the plaintiffs praying for extension of time for deposit of cost of Rs. 30. The case of the applicant was that amount of cost was paid but since there was no endorsement made in the file, the applicant has no option but to pray for extension of time for depositing the cost. The trial Court by the order dated 22-10-1983 allowed the application and directed the plaintiffs to deposit Rs. 60. Against the order dated 22-10-1983 a revision was filed by the respondents. The revisional Court vide its order dated 5-7-1984 allowed the revision by setting aside the order of the trial Court by which the application of the plaintiff-petitioners for condoning the delay in deposit of the cost was allowed. This writ petition has been filed by the petitioners challenging the order dated 5-7-1984. I have heard the Counsel for the petitioners and perused the record.
(3.) THE revisional Court vide its order dated 5-7-1984 took the view that extension of time for depositing the cost could not have been made by the trial Court and the order of the trial Court extending the time was not within jurisdiction. THE revisional Court held that the time of 15 days for payment of cost granted by the learned Special Judge could have been extended only by appellate Court and not by the trial Court. One of the issue which has arisen in the present case is as to whether the trial Court had acted within its jurisdiction in extending the period for depositing of the cost. From the order, of the appellate Court dated 29-11-1982, it is clear that appellate Court set aside the order of the trial Court rejecting the restoration application and further directed that restoration application is allowed on payment of Rs. 30 as cost to the respondents to be paid within 15 days. The appellate Court further said that Misc. Case No. 38 of 1981 is restored to its original number. The operative portion of the order dated 29-11-1982 is extracted below: "the appeal is allowed and the order under appeal is set aside. Application 4-C for restoration of Misc. Case No. 38 of 1981 is allowed on payment of Rs. 30 as costs to the respondents which shall be paid within 15 days and Misc. Case No. 38 of 1981 is restored to its original number. Let the record be sent back to the learned trial Court. ";