Order IX Rule 9 of C.P.C. = Therefore, it is quite clear that having made an order in the petition under Section 5 of the Limitation Act final, the discretion exercised by the Court below in restoring the suit cannot be again re-agitated. So far as the grievance with regard to non-imposition of costs is concerned, in fact there are two limbs under Order IX Rule 9 of C.P.C., and the Court has a discretion to set aside the dismissal order if sufficient cause is shown for non-appearance and such a setting aside would be subject to such terms as to the costs or otherwise, as it thinks fit.

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD

 

MONDAY, THE NINETEENTH DAY OF FEBRUARY
TWO THOUSAND AND THIRTEEN

 

PRESENT

THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO

 

CIVIL REVISION PETITION No. 605 of 2013

 

Between:

 

Kotikelapudi Balasarada Kumari                                 ..... PETITIONER

AND

 

M/s Kings Enterprises, a registered partnership,

Rep. by its Managing Partner Vegesle Narayana Raju

and three others.                                                    .....RESPONDENTS

The Court made the following:

THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO

 

CIVIL REVISION PETITION No. 605 of 2013

ORDER:

The Civil Revision Petition is filed against the order in I.A.No.1245 of 2010 in O.S.No.11 of 2003 on the file of the I Additional District Judge, Vizianagaram. 

2.       The revision petitioner is defendant in the suit and the above said application was filed Under Order IX Rule 9 C.P.C., to set aside the default order dated 25.06.2008 and the Court below after considering the reasons mentioned, allowed the application.  Aggrieved by the said order the present revision is filed. 

3.       As can be seen from the record, the counsel for the Revision Petitioner contends that the provisions of the Order IX Rule 9 C.P.C., have not been complied with, since there was no order as to costs and there is no sufficient reason to restore the suit.  Further, it is his contention that after the dismissal of the suit, some third party interests have been created and the cause of action does not survive. So far as the later contention is concerned, it is a matter, which has to be decided by the Court during the trial.  So far as the grounds for setting aside the dismissal order is concerned, the Court has already condoned the delay of 38 days in I.A.No.2644 of 2008 accepting the reasons given by the plaintiffs and on the same cause, the suit has been restored.  Therefore, it is quite clear that having made an order in the petition under Section 5 of the Limitation Act final, the discretion exercised by the Court below in restoring the suit cannot be again re-agitated.  So far as the grievance with regard to non-imposition of costs is concerned, in fact there are two limbs under Order IX Rule 9 of C.P.C., and the Court has a discretion to set aside the dismissal order if sufficient cause is shown for 
non-appearance and such a setting aside would be subject to such terms as to the costs or otherwise, as it thinks fit.  Therefore, I am not able to accept the contention of the counsel for the revision petitioner that imposition of the costs is mandatory before an order of restoration is made under Order IX Rule 9 of C.P.C.  On the other hand, if sufficient cause is shown, it is mandatory to set aside the dismissal order on such terms as to costs or otherwise.  In this case the Court below has imposed conditions about the trial of the suit and also for filing of the list of witnesses.  Therefore, I do not find any infirmity in the order of the lower Court for non-imposition of the costs in restoring the suit.  But however, the counsel for the revision petitioner represents that prior to the dismissal, costs were imposed against the plaintiff and those costs were also not paid.   I feel, in the interest of justice, if the earlier costs which were already imposed should have been directed to be paid by the plaintiffs.  

Therefore, in view of the above circumstances, the lower court is directed to see that the costs, if any, imposed prior to restoration of suit shall be paid before the commencement of the trial as per the orders of the Court.

Accordingly, the Civil Revision Petition is disposed of.  Miscellaneous petitions, if any, pending in this revision shall stand disposed of.  No order as to costs.

________________________

N.R.L.NAGESWARA RAO,J

Date: 19.02.2013

SSV/KVS