JANI W/O. ISHRAM VAROKER Vs. SONI W/O. MAHADEO SAWARKAR

JUDGEMENT

(1.) ON 11th January 1938 the Court granted an adjournment to the plaintiffs for filing a written statement subject to their paying Rs. 10 adjournment costs before the next hearing. It was laid down that the failure to pay the costs would bring about the dismissal of t0he suit. At the next hearing costs were not paid, and plaintiffs were given time as a last chance till 28th January 1938 for doing this. On that date one of the plaintiffs was present with their pleader, but costs were not paid ; so the lower Court enforced its order and dismissed the suit. In revision it is first of all contended for plaintiffs that their failure to pay costs was due to the negligence of their agent. There is no mention of the agent in these order sheets, and I cannot go beyond the record. The plaintiffs must be responsible for their agent's default, if any, but it is rather curious that although one plaintiff was present on 28th January 1938 there is no mention of such a plea having been taken or of any offer to pay costs even then. The application however is pressed on the ground that the lower Court could have acted only under Order 17, Rule 3, Civil P.C, which does not allow a case to be dismissed, the penalty being that it should be decided forthwith, when the plaintiffs would have had a right of appeal. The lower Court did not at the time specify under what Order it was acting, but subsequently decided that it must have been under Order 17, Rule 1, Civil P.C. It was certainly possible for the Court to act under this. Order, and it must be assumed in the circumstances that it did so. The further point then is whether dismissal of the suit can follow as a consequence of disobedience of an order under Order 17, Rule 1. Sub-rule (2) reads: In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment.

(2.) THE words "may make such orders as it thinks fit" are surely sufficiently wide to cover a condition to be imposed as a penalty if the costs are not paid. It is a salutary practice to impose such conditions so that parties may know where they stand and so that there should be some compulsion on them to obey such orders of the Court. I have held in a previous Babulal v. Hazarilal, Civ. Revn. No. 293 of 1988. that dismissal of a suit can take place under Order 17, Rule 1, Civil P.C, and there is authority for this also in E.I. Ry. Co. v. Jit Mal Kallu Mal, (1925) 12 AIR All 230 in which it was held that an order imposing the penalty of the defence being struck off in case defendant failed to pay costs of adjournment was one clearly within the competency of the Court under Order 17, Rule 1. In Ayohyaprasad v. Secretary of State (1924) 11 AIR Nag 298, Kinkhede, AJC. held that Order 17, Rule 1 should be liberally construed, particularly as there is latitude given, to the trial Court to make any such orders as it thinks fit in lieu of an order of dismissal. This too implies that an order of dismissal can be made. If it can be made, it can certainly be carried out, and Order 17, Rule 1 cannot be restricted by. Order 17, Rule 3. I must hold therefore that there is no force in revision application, which is dismissed, with costs. Counsel's fee Rs. 10.