SHIV DULAREY Vs. SHIV BEHARI LAL AND ANOTHER

JUDGEMENT

(1.) THIS is an application in revision by the plaintiff whom the learned D. J. has ordered to pay the opposite party Rs. 75/ - as special costs as condition precedent to the setting aside under O. 9, R. 4 of the dismissal of his suit under R. 3. Though this is an unimportant case, a general principle is involved. The questions are whether such an order is a case decided within the meaning of S. 115. Civil P. C., and secondly, whether, having found that there is sufficient cause for the setting aside of the dismissal made under R. 3. the court has jurisdiction to make a consequential order for special costs to the defendant as condition precedent

(2.) THE facts of the case are these: The suit of the applicant had been proceeding for some time in the court of the learned Addl. D. J., Rewa, and was to come up on 28 -8 -1952 for the evidence of the defendant. When the case was called out as usual in the first hour neither party nor lawyer turned up; the court noted their absence and dismissed the suit under O. 9 R. 3.

(3.) THE plaintiff now contends that once his cause for non -appearance was found sufficient, there need have been no hearing of the other party, and in no case has the court jurisdiction to order such special costs under R 4 of O. 9. The defendant opposite party urges that this is not a case for revision at all, and in any event the lower court has only given son -able compensation for the inconvenience the defendant has suffered on account of the plaintiff's own laches.