MT. RADHABAI W/O. LAXMAN TELI Vs. MT. PURNIBAI W/O. VITHAL TELI

JUDGEMENT

(1.) IN this case the plaintiff obtained an adjournment on condition that she should pay costs Rupees 10-0-0 and she was informed that if she failed to pay Rs. 10-0-0 on the date of the next hearing, her suit would be dismissed. The next hearing took place more than two months later, on 29th September 1941. The order-sheet of that date runs as follows: Parties as before. Plaintiff is unable to pay the costs which were a condition precedent. Suit dismissed therefore, vide E.I. Rly. Co. v. Jetmal Kallumal. Plaintiff to pay defendant's costs. Pleader's fees Rs. 15-0-0 if certified. Plaintiff's costs Rs. 6-12-0, defendant's costs Rs. 41-12-0.

(2.) ON 8th October 1941, the plaintiff filed an application for restoration of her suit, saying that she was unaware that the payment of costs was a condition precedent and that on 29th September 1941 the Court was very busy and the case of the applicant could not be reached until 5 P.M. and that the counsel could not be found at the time when the case was called. Then follow the material words: The applicant had only Rs. 5-0-0 along with her then, which she offered and prayed to the Court that as the case was being adjourned she will pay the balance on the next hearing as she did not know that the payment of the costs was condition precedent.

(3.) ACCORDINGLY , on 23rd December 1941,Rupees 20-0-0 were tendered to the defendant's counsel who refused to accept these costs and has made the present application in revision against the order of the learned Judge of the trial Court restoring the suit. It has been, decided by Gruer J. in a case reported in Jani v. Soni that Order 17, Rule 3 is wide enough to cover conditions if the adjournment costs are not paid, and that under this rule an order of dismissal of a suit can be made and carried out. It is also said that Order 17, Rule 3 does not restrict Order 17, Rule 1, i.e., in such a case the suit has not got to be determined on materials other than the fact of non-payment of the adjournment costs. But the question arises as to what remedy is open to the plaintiff if such a suit is so dismissed. The learned advocate for the applicant says that in such cases an appeal lies from the order of dismissal, and that the order of dismissal is to be treated as analogous with an order of dismissal resulting from the application of Order 17, Rule 3. The non-applicant says that no appeal lies and that under Section 151, Civil P.C., the Court should entertain an application for restoration.