1. Is a conditional order to pay costs while allowing an application to restore the suit dismissed for default or to set aside the ex-parte decree appealable? Can an Original Petition be entertained when the challenge is confined to the liability to pay costs or its quantum? Can the discretion of the trial court in fixing the costs be tinkered with in exercise of the jurisdiction under Article 227 of the Constitution of India?

2. Several original petitions are being filed challenging the conditional order to pay costs while allowing applications of the following nature under the Code of Civil Procedure, 1908 (the ‘CPC’ for short):

(i) An application under Rule 9 of Order IX CPC for an order to set aside the dismissal of a suit.

(ii) An application under Rule 13 of Order IX CPC for an order to set aside the decree passed ex-parte.

The liability to pay costs or its quantum is often challenged contending that the same was unwarranted and unjustified under the circumstances. It is the declared stand of the petitioners that they are not liable to pay costs and that the quantum fixed by the court below is bloated.

3. What then is the consequence of not paying the costs or its requisite quantum as fixed by the court while allowing the applications? The necessary consequence is that the application to restore the suit or to set aside the ex-parte decree would stand dismissed. An order rejecting an application under Rule 9 of Order IX CPC is appealable under Order XLIII Rule 1(c) CPC. Similarly an order rejecting an application under Rule 13 of Order IX CPC is appealable under Order XLIII Rule 1(d) CPC. Therefore a challenge to the liability to pay costs or its quantum while allowing applications under Rule 9 of Order IX CPC or Rule 13 of Order IX CPC can be in an appeal only. An original petition under Article 227 of the Constitution of India need not be entertained under the circumstances.

4. The words ‘sufficient cause’ occurring in Rule 9 of Order IX CPC and Rule 13 of Order IX CPC is an elastic expression for which no hard and fast guidelines can be prescribed. (See G.P. Srivastava Vs. R.K. Raizada [(2000) 3 SCC 54]. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The necessary corollary is that the courts have a wide discretion in fixing the costs while deciding the sufficient cause. The discretion so exercised by the courts in fixing the costs therefore cannot be assailed under Article 227 of the Constitution of India.

5. I am not oblivious that the costs directed to be paid as a condition should be realistic and practical and should not be fanciful and whimsical. (See Sanjeev Kumar Jain Vs. Raghuvir Saran Charitable Trust [(2012) 1 SCC 455]. But costs normally fixed as a condition for allowing applications under Rule 9 of Order IX CPC or Rule 13 of Order IX CPC should not be substituted by the higher courts. The courts below had after all the advantage of verifying the merit of the list and the conduct of the parties in fixing the costs.

6. The instant case deals with an order passed on an application filed under Rule 9 of Order IX CPC in a suit for a decree of permanent prohibitory injunction. The relevant part of the order reads as follows:

“…. Hence suit is restored on payment of cost of Rs.1,500/- each to respondents 1 to 7 within 15 days’.

The order aforequoted is conditional and works itself out the moment the time fixed for payment of costs expires and no further consequential order is necessary. The failure to pay the costs results in the rejection of the application under Rule 9 of Order IX CPC making it appealable.

7. The further order of dismissal for default of compliance merely records the legal position which had arisen from non-fulfilment of the condition precedent. The parties are affected by the conditional order and no inroad into their right have been made anew by the consequential order. It is apposite to re