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1971 Supreme(Gau) 11
GAUHATI HIGH COURT
M.C.Pathak, J.
Dinesh Chandra Nath -Appellant
Versus
Surendra Chandra Nath -Respondent
Civil Revision No. 150 of 1969
Decided On : 12-02-1971
N.M.Lahiri, K.P.Bhattacharjee, B.M.Mahanta
An order of dismissal passed under Order 9 Rule 9 CPC takes effect automatically upon default of payment of costs within the time limit, and the court has no jurisdiction to extend the time for payment of costs.
Headnote:
ORDER 9 RULE 9 CPC - RESTORATION OF SUIT - EXTENSION OF TIME FOR PAYMENT OF COST - JURISDICTION - REVIEW - ORDER 47 RULE 1 CPC - SUMMARY
Fact of the Case:
The plaintiffs filed a suit which was dismissed for default. They filed an application for restoration of the suit under Order 9 Rule 9 CPC, which was allowed conditionally upon payment of costs by a certain date. The plaintiffs failed to pay the costs within the time limit, and the application was dismissed. They then filed a petition under Section 151 CPC to set aside the order of dismissal, which was rejected. They then filed an application under Order 47 Rule 1 CPC for review of the order of dismissal.
Finding of the Court:
The court held that the trial court had no jurisdiction to extend the time for payment of costs, as the order of dismissal had already taken effect automatically. It also held that the application under Order 47 Rule 1 CPC was not maintainable, as the same grounds had already been considered and rejected in the petition under Section 151 CPC.
Issues: 1. Whether the trial court had jurisdiction to extend the time for payment of costs. 2. Whether the application under Order 47 Rule 1 CPC was maintainable.
Ratio Decidendi: 1. Once an order of dismissal is passed under Order 9 Rule 9 CPC, the court becomes functus officio and has no jurisdiction to extend the time for payment of costs. 2. An application under Order 47 Rule 1 CPC cannot be maintained to review an order which has already been considered and rejected in a petition under Section 151 CPC.
Final Decision: The court dismissed the revision petition.
2. The plaintiffs-petitioners filed 12/65
Title Suit No. --------- in the Court of the 266/65
Sadar Munsiff of Silchar against defendant-Opposite party for declaration of a document as fraudulent and collusive. The suit was dismissed for default on 7-10-66. An application under Order 9, Rule 9 of the Civil Procedure Code, was filed on behalf of the plaintiff-petitioners. The case was numbered as Misc. Case 250/66 and it was allowed conditionally and the operative portion of the order of the learned Munsiff, dated 14-12-67 is as follows:
"It is, therefore, ordered that the case shall stand allowed if the petitioners deposit a cost of Rs. IS/- by 20-12-67 here and in case of default the case shall stand dismissed."
The petitioners did not pay the cost by 20-12-67. So on 21-12-67 the learned Munsiff ordered that since no cost was deposited by the petitioners on or before 20-12-67, the case stood dismissed. The petitioners thereafter filed a petition under Section 151, Civil Procedure Code on 5-1-58 for restoration of the revival petition giving reasons for failure to deposit the cost in time. By his order dated 8-1-68 the learned Munsiff considered the reasons for failure on the part of the plaintiffs to deposit cost and rejected the petition under Section 151, Civil Procedure Code. Thereafter the petitioners filed another application under Order 47, Rule 1 of the Code of Civil Procedure for setting aside the order of dismissal of Misc. Case No. 250/66. The learned Munsiff allowed the petition and restored the original suit by his order dated 13-12-68. Against that order the defendant-Opposite party preferred an appeal before the learned Assistant District Judge, Cachar and that appeal was numbered as Misc. Appeal No. 9 of 1969.
3. The learned Assistant District Judge by his judgment and order dated 4-8-69 allowed the appeal and set aside the impugned order of the learned Munsiff. The present revision petition is directed against the order of the learned Assistant District Judge.
4. The learned Assistant District Judge has found that when the petitioners defaulted in payment of the cost, the application for revival stood dismissed and therefore the Court had no jurisdiction to extend time under Section 148 Civil Procedure Code and also to entertain the petition under Order 47, Rule 1 of the Code of Civil Procedure.
5. Two points that arise for consideration in this case are: (1) whether the learned Munsiff had jurisdiction to extend time for payment of the cost in view of his orders dated 14-12-67 and 21-12-67 and (2) whether the application under Order 47, Rule 1, Civil Procedure Code for review of such an order lay.
6. The learned Munsiff disposed of the revival petition under Order 9, Rule 9, Civil Procedure Code by allowing the petition and restoring the suit on condition that the plaintiff-petitioners must pay the cost of Rs. IS/- by 20-12-67. In the order he clearly stated that if the plaintiff-petitioners failed to pay the cost within the fixed time, the revival petition would stand dismissed. It is settled law that if a suit is revived on condition of payment of cost within a fixed time and if the order further says that if the cost is not paid within the fixed time, the application for revival of the suit shall stand dismissed, then in such case, on default of the petitioner to make payment of cost within the fixed time, the order of dismissal of the petition takes effect automatically. In the instant case, on the default of the petitioners the order of dismissal took effect automatically. Moreover the learned Munsiff passed another order on 21-12-67 dismissing the petition for revival. In the circumstances the Court became functus officio thereafter and there was no scope for extension of the time for payment of the
