- (1.) A very short, but interesting ques tion of law, is involved for considera tion in this case.
(2.) THE' petitioner herein was a de fendant in a civil suit filed by respond ent no. 3-plaintiff U/s 15 of the Pro vincial Small Cause Courts, 1887, wherein respondent no. 3 had sought eviction of the petitioner from the property in question. Even though ini tially petitioner-defendant had ap peared in the said suit, but since long he chose to remain absent, the suit proceeded ex parte against the petitioner and ultimately ex parte decree was passed against the petitioner by the learned Trial Court on 06-05-1993. On 12-05-1993, the decree sheet was drawn up, which as per established practice, procedure and law, contained statement of costs borne by the par ties. THE operative part of the ex parte judgment dated 06-05-1993, undoubt edly and admittedly did not contain any order or direction with respect to the payment of costs. Even though de cree sheet was drawn up based upon the aforesaid judgment on 12- 05-1993 and even though it also contained tabular statement with respect to the costs incurred by the respective par ties, it did not contain any direction or order about the liability to pay the costs. Aggrieved by the ex parte de cree dated 06-05-1993, the petitioner-defendant filed an application for set ting aside the exparte decree in terms of Order 9 Rule 13 C. P. C. and the Trial Court vide its order dated 11-11-1993 allowed the said application and set aside the ex parte decree subject to the condition of the petitioner-defendant depositing the decrial amount. It is undisputed case of the parties that pursuant to this order, the petitioner-defendant had deposited an amount of Rs. 5490/-, which was, in fact, the decretal amount. Consequent upon the petitioner-defendant having deposited the aforesaid amount, he filed an application in the Trial Court for consequential implementation of the order dated 11-11-1993 for setting aside the ex parte decree. In this ap plication, respondent no. 3-plaintiff filed his objection stating therein that the order dated 11-11-1993 could not have been implemented because the petitioner-defendant had not deposited the entire decretal amount in as much as even though he had deposited Rs. 5490/-, since he had not deposited the costs of the suit as had been reflected in the decree sheet, this amounted to non-compliance of the order dated 11-11-1993. Based upon this objection of respondent no. 3- plaintiff, the learned Trial Court vide its order dated 26-12-1993 rejected the petitioner's application for implementation of the order dated 11-11-1993 agreeing with the conten tion-objection of respondent no. 3 that since the petitioner had failed to deposit the costs of the suit, he had failed to comply with the direction relating to the deposit of the decretal amount vide the Court order dated 11-11-1993. Ag grieved by this order, the petitioner filed a revision petition before the learned Dis trict Judge, who while dismissing the same vide his order dated 26-02-1994, concurred with the view of the learned Trial Court by holding that, indeed, be cause of the failure of the petitioner to deposit the amount of costs, he had not complied with the direction contained in the Court order dated 11-11-1993. In the present petition filed un der Article 226 of the Constitution of India, the petitioner has challenged the aforesaid order of the learned District Judge.
(3.) THE decree sheet does indicate in the tabular form, the costs incurred by the parties. Whereas the column of costs against the plaintiff shows that the plaintiff had incurred Rs. 443/- as costs, in the column relating to the de fendant, the costs amount shown is Rs. 55. 50. Section 35 C. P. C. reads thus : "35. Costs.- (1) Subject to such conditions and limitations as may be prescribed and to the provi sions of any law for the time be ing in force, the costs of and inci dent to ail suits shall be in the dis cretion of the Court and the Court shall have full power to determine by whom or out of what property and to what' extent such costs are to be paid and to give all neces sary directions for the purposes aforesaid. The fact that the Court has to jurisdiction to try the suit shall be no-bar to the exercise of such powers. (2) Where the Court directs, that any costs shall not follow the event, the Court shall state its rea sons in writing. ";