- (1.) This petition is directed, against the order of the trial Court dated 6th January, 1988 whereby the application under Section 148 read with Section 151 CPC for extending the time for payment of the cost was dismissed. The plaintiff filed the suit on 2nd December, 1985. The defendants were to file the written statement on 29th June, 1986. However, the case was adjourned from time to time but no written statement was filed. On 1st April, 1986, the case was adjourned for 30th April, 1986, 24th May, 1986, 21st July, 1986, 11th August, 1986 and 30th August, 1986, but no written statement was filed. On 30th August, 1986 the defendants were allowed adjournments for filing the written statements on 22nd September, 1986, which was granted subject to payment of Rs. 20/- as costs. On 22nd September, 1986, also no written statement was filed and the Court passed the following order :- "G.P. has not filed the written statement despite several adjournments. Last adjournment was given subject to payment of Rs. 20/- as costs. Neither the cost has been paid by G.P. today, nor written statement has been filed. So there is no sufficient cause for granting further adjournment for filing the written statement. Keeping in view the fact that the defendant has not tendered cost of adjournment, the defence is struck off and the defendant is ordered to be proceeded against ex parte. Now to come up on 3.1.1986 for ex parte evidence of the plaintiff. The Union of India had filed Revision Petition No. 106 of 1987 against the said order in this Court in which on 16th January, 1987, this court passed the following order : "Notice of motion for 18th February, 1987. Further proceedings before the trial Court are stayed till further orders. The petitioner shall pay Rs. 1000/- as costs to the respondents irrespective of the result of this petition." From the record of the trial Court it is evident that the said costs of Rs. 1,000/- was paid as recorded in its order dated 6th January, 1988.
(2.) Meanwhile, on 28th September, 1987 the defendant moved an application under Section 148 read with Section 151 CPC and also tendered Rs. 20/- as costs awarded on 22nd September, 1986. The said cost was declined by the learned counsel for the plaintiff. The said revision petition was consequently got dismissed as withdrawn vide order dated 19th February, 1987. The order reads as under :- "The learned Advocate-General prays that he may be allowed to withdraw this petition to enable him to approach the trial Court in accordance with the rule laid down by the full Bench of this Court in Anand Parkash v. Bharat Bushan Rai and another, 1982 1 RCR(Rent) 1. This petition is accordingly dismissed as withdrawn." The application filed by the defendants under Section 148 read with Section 151 CPC was dismissed vide impugned order dated 6th January, 1988 with the observations that "so keeping in viewing the post conduct of the defendants, I am of the opinion that the non-payment of the costs by the defendants on 22.9.1986 was an intentional act and therefore, the time for making the payment of the costs cannot be enlarged and the provisions of Section 35-B CPC are strictly applicable to the present case. The application of the learned G.P. is therefore dismissed." The learned counsel for the petitioner submitted that the costs of Rs. 20/- could not be paid on 22nd September, 1986, as the necessary letter for payment of the said cost was received by the District Attorney on that very day i.e. 22nd September, 1986, and therefore, it was not practicable for the defendants to make the payment on that very day. Thus, argued the learned counsel, the non-payment of the aforesaid cost was not intentional, but was only due to unavoidable circumstances.
(3.) On the other hand, the learned counsel for the respondent submitted that no petition under Section 115 CPC was maintainable against the impugned order. It was the discretion of the trial Court to extend time if any and if the same was refused in exercise of its power by the trial Court, the same will not be interfered with in revisional jurisdiction. According to the learned counsel on the basis of the averments made in the plaint itself the suit should have been decreed by the trial Court when the defence was struck off in view of the judgment of this Court reported in M/s. Rajesh Industrial Corporation and others v. Bank of Maharashtra, 1987 RRR 420.;