- (1.) BRIJESH Kumar, J. This writ petition has been filed impugning the order passed by the learned District Judge, allowing the revision preferred by the opposite parties Nos. 2 to 4, setting aside the order passed by the trial court by which the Trial court had allowed the application of the petitioner/plaintiff under Order IX Rule 9 CPC and restoring the suit to its original number.
(2.) I have heard learned counsel for the petitioner and the learned counsel appear ing for opposite parties Nos. 2 to 4. The facts in brief, to appreciate the point involved in proper background, are that the petitioner/plaintiff filed a suit for arrears of rent, damages and ejectment of opposite parties Nos. 2 and 3 from the premises A-91 Mahanagar (546/68) P. S. Mahanagar, Lucknow. The case was registered as Regular Suit No. 73 of 1969. The controversy, which seems to have arisen between the parties, was about the time of construction of the house. According to plaintiff, it was constructed after 1950, therefore, U. P. Temporary (Control of Rent and Eviction) Act, 1947, did not apply. In the alternative it was pleaded that even if the provisions of the said Act apply, the defen dants/opposite parties were liable to be ejected under Clauses (a), (b) and (c) of sub section (1) of Section 5 of the Act and also for the reason that their tenancy was ter minated under Section 106 of the Transfer of Property Act. The defendants, however, contested the suit and came out with the defence that the house was a pre-1950 construction, hence governed by the Old Act, namely, 1947 Act. The suit was however, decreed by Judgment and order dated 9-10-71 holding that it was post 1950 construc tion, hence it was not governed by Old Act No. III of 1947. An appeal filed by the defen dants/opposite parties was dismissed. A second appeal was preferred before this Court, namely, Second Appeal No. 46 of 1973 which was allowed by judgment and order dated 21-2-75. It was found that since the construction was post 1950 and the Old Act 1947 was not applicable, hence the ejectment could not be ordered under clauses (b) and (c) of Section 5 (1) of the Act No. III of 1947. Since, however, in the mean time Act 13 of 1972 had been enforced, it was provided that the plaintiff cold amend her pleadings in accordance with the provisions contained under Section 12 of 1972 Act, namely, U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It was also provided that the trial court could frame proper issues and decide the matter accordingly. The suit was thus remanded to the trial court. The petitioner moved application for amendment of the plaint which was al lowed by order dated 25- 2-77. The petitioner was required to deposit an addi tional court fee of Rs. 997. 70 P. which, ac cording to the petitioner, was also paid on 15-4-77. So far payment of costs is con cerned the plaintiffs case is that it was also paid but no receipt was obtained, hence the same was not filed in the Court, however, it was reported by the office that the court fee was filed but costs were not paid. The case was ordered to be put up on 7-5-1977. On 15-7-77, the plaintiff was required to show cause as to why suit be ordered not to proceed for non payment of costs for amendment of the plaint. The case was ul timately fixed for 23-9-77 for arguments on the point of payment of costs in context with Section 35-B of the Code of Civil Procedure. Since the counsel for the plaintiff was not present at the time the case was called, it was dismissed with costs.
(3.) THE plaintiff moved an application under Order 9 Rule 9 of the Code of Civil Procedure for setting aside order dated 23-9-77 dismissing the suit. THE application was, however, contested on the ground that the application under Order 9 Rule 9 of the Code of Civil Procedure was not maintainable since the suit was dismissed on 23-9-77 not because of non appearance of the plaintiff but for non payment of costs imposed on the plaintiff while allowing amendment of the plaint. THE Civil Judge, Lucknow, however, by order dated 5-1-81, allowed the application moved by the petitioner under Order IX Rule 9 of the Code of Civil Procedure holding that the suit would be taken to have been dismissed in default of the plaintiff. THE defen dants/opposite parties, however, challenged the order passed by the Civil Judge by filing a revision which was allowed by Opposite Party No. 1, namely, the learned District Judge by order dated 5-8-1982 holding that order dated 23-9-77 could not be said to have been passed under Order IX Rule 8 of the Code of Civil Procedure, hence the ap plication under Order IX Rule 9 of the Code of Civil Procedure was not maintainable. A copy of the order passed by the learned District Judge has been filed as Annexure-9 to the writ petition. THE controversy, thus, involved in the present petition is as to whether the order dated 23-9-77 was an order dismissing the suit in default passed under Order Ix Rule 8 of the Code of Civil Procedure or it was an order passed under Section 35-B of the Code of Civil Procedure dismissing the suit for non compliance with the order of payment of costs to the defen dants on account of amendment of plead ings by the plaintiff. Before proceeding with the merits of the matter it would be appropriate to have the orders passed by the trial court dismiss ing the suit as well as the relevant provisions of the Code of Civil Procedure. A true copy of the order dated 23-9-77 has been filed as Annexure-3 to the writ petition. It reads as follows: "case called out, the defendants appeared, plaintiff did not appear. The plaintiff was allowed to amend plaint on payment of certain costs. But he did hot pay off such cost and inspite of this fact, amended the plaint. Then he was required to show cause as to why he be not forbided from prosecuting the plaint. But the plaintiff neither paid of the cost nor filed any explanation as required by notice. Therefore, the plaintiff is prevented for prosecuting the plaint. Under the amended C. P. C. and in the result the suit is dismissed with cost. " Annexure 4 is extract of order sheet containing the orders passed by the trial court between 12-2-77 to 19-8-77. The relevant orders are quoted below: Order dated 25-2-77 70-A. by the plaintiff for amendment in the plaint. Pressed for cost by the defendant. The application is allowed. Let the amend ment be done within 15 days. But the ap plication is so allowed only on payment of Rs. 12 as cost. Munsarim will now report by 11-3-77 after the plaint is amended. Order dated 15-7-77 S. S. More for the defendant. None ap peared for the plaintiff. Put upon 19-8-1977 for orders. The plaintiff shall show on the said date as to why he be not ordered to "not press" the suit, in default of payment of cost under the amended Court Fee Act. Order dated 19-8-77 73-D by plaintiff for adjournment on the ground that he is busy in the Hon'ble High Court in a part heard case. Allowed. Fixed 23-9-77, argument on the point as given in Sec. 35-B of the CPC".;