1. This civil revision petition has arisen out of the order dated 27.7.2009 passed in I.A.No.1164 of 2008 in O.S.No.339 of 2007 on the file of XI Junior Civil Judge, City Civil Court, Secunderabad.

2. The brief facts of the case are as follows:

The respondent herein is the plaintiff in original suit. The petitioners 1 & 2 herein are the defendants 1 & 2 in the original suit. The respondent filed a suit for perpetual injunction against the petitioners herein contending inter alia that the suit schedule property was gifted to her by her father under a gift deed vide document No.2749/1992, dated 6.3.2009 and that since then she has been in peaceful possession and enjoyment of the suit schedule property.

3. The main case of the petitioners herein appears to be that the respondent herein executed General Power of Attorney in favour of her husband, who in turn by virtue of G.P.A executed a sale deed in favour of one Srinivias who in turn executed a sale deed in favour of 2nd petitioner herein. The specific case of the respondent is that she never executed any G.P.A in favour of her husband. It is also the case of the respondent that the petitioners herein did not file any documents before the lower Court on which they are relying. The matter was posted for trial on 24.9.2008. The specific case of the respondent is that as she was suffering with high fever, she could not attend the Court and could not pay the costs as directed by the Court. Consequently, the suit was dismissed for default on 24.9.2008 and then she filed I.A.No.1164 of 2008 under Order 9, Rule 9 CPC read with Section 151 of CPC to restore the suit. The lower Court, observing that an application was filed within the period of limitation and that an opportunity has to be given to the petitioner, allowed the application on payment of costs of Rs.500/-.

4. As seen from the grounds of appeal, the case of the petitioners herein i.e., the respondents in the lower Court is that the lower Court has no jurisdiction to allow the same in view of the language of Section 35B C.P.C and when the suit was dismissed for non-payment of costs and that it is a decree under Section 96 of C.P.C and therefore an appeal lies and no application was maintainable. It is also contended that the lower Court has no jurisdiction to pass the impugned order.

5. The only point that arises for consideration is whether the impugned order is sustainable?

Section 35B of CPC is as follows:

“35B.Costs for causing delay.—(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit—

(a)fails to take the step which he was required by or under this Code to take on that date, or

(b)obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of—

(a)the suit by the plaintiff, where the plaintiff was ordered to pay such costs,

(b)thedefence by the defendant, where the defendant was ordered to pay such costs.”

6. Explanation of Section 35-B is more important which is as follows:

“Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.”

7. It has to be seen that in spite of introducing under Section 35-B, there is no amendment to Order 9, Rule 9 CPC which remains as it is. Thus, it appears that in spite of adding Section 35-B, the powers of the Court under Order 9, Rule 9 CPC are not taken away.