' This Regular Second Appeal is directed against the order and decree dated 10-3-1983 whereby Additional District Judge, Multan dismissed the appeal of the appellant for non-payment of costs awarded for the restoration of the appeal.
2. Facts emerging from the perusal of the record and the submissions made by the learned counsel for the parties, briefly stated, are that respondent No.1 filed a suit against the appellant and respondent No.2 for possession through partition in respect of property No.449 situate in Ward No.6 Muslim, Multan city. Trial Court passed a preliminary decree on 22-12-1980 which was challenged in an appeal by the appellant on 8-3-1981. This appeal was dismissed in default on 15-9-1981.
Appellant moved an application for restoration of the appeal on 19-9-1981. On 24-3-1982, respondent No.1, his counsel as also the counsel for respondent No.2 made the following statement:- [URDU TEXT] Learned Additional District Judge then passed the following order:-
3. Appeal having been restored as aforesaid, a separate order was recorded on the appeal file on the same date which is reproduced hereunder:-
4. On 7-4-1982, an order was again passed for summoning the file of the trial Court for 6-5-1982. It was noted in the order that the costs had not been paid. It was, therefore, directed that the costs be paid on the date fixed. On 6-5-1982, Presiding Officer of the Court having gone to Rawalpindi to attend a 'Shand' Training Course. Reader of the Court recorded a note in the order sheet that the file of the trial Court had not been received which may be summoned for 27-7-1982. It was noted in the order sheet that the costs had not been paid. On 27-7-1982, learned Presiding Officer was on leave and the case was adjourned by the Reader to 18-9-1982 to await the file of the lower Court.
Nothing was stated about the costs. It appears that 18-9-1982 was declared a public holiday. Case was, therefore, taken up on 19-9-1982 on which date learned Additional District Judge directed that the file of the lower Court be summoned urgently and adjourned the case to 5-10-1982 on which date record of the lower Court was received but the Presiding Officer was on leave and case was, therefore, adjourned to 23-11-1982. On the latter date, Presiding Officer was stated to have gone on tour to Shujabad for hearing the 'Hadood' cases. Case was, therefore, adjourned to 10-1-1983 for arguments.
5. On 10-1-1983, learned counsel for respondent No.2 pointed out that the appeal was restored on 24-3-1982 subject to the payment of costs which had not been paid till then and as such appeal was liable to be dismissed. This contention was upheld by the learned Additional District Judge who passed the impugned order which is reproduced in extenso:-[URDU TEXT]
6. Learned counsel for the appellant submitted that the order, dated 24-3-1982 quoted hereinabove allowing the application for restoration of the appeal show that the payment of costs was not made a condition precedent to the re-admission of the appeal and as such it was not a conditional order, Submission of the learned counsel was that the afore-referred order neither fixed any time by or before which costs were to be paid nor was any specific direction made therein that in case of non-payment of costs, the appeal shall be dismissed or shall stand dismissed. Thus, non-payment of costs by the appellant, according to the learned counsel, could not be visited with the penalty of dismissal of appeal.
' In order to illustrate his point that the aforementioned order dated 24-3-1982 was not a conditional order, learned counsel referred to Gaya Din v. Lalta Prasad and others AIR 1936 All. 477 and East Indian Railway Company v. Jitmal Kallomal AIR 1925 All.
280. These two cases, according to learned counsel, furnish instances of conditional orders, non- compliance with which could result in penal consequences.
7. In the first case, plaintiff's suit was dismissed in default and his application for restoration was allowed "on condition of payment of Rs.8 for costs to the opposite party on or before 27th October, 1934. In case of default the application was to stand as dismissed". Rs.4 were paid on 15th September, 1934 but the balance was not paid upto 27th October, 1934. Plaintiff moved an application for permission to pay the balance but the same was dismissed by the trial Court on the ground that it had no power to extend the time for payment of costs. Plaintiff's revision petition was also dismissed by the High Court which held that the order of the trial Court was legal and valid and while examining the effect of the order, it was observed "the next question is what was the effect of the order on the expiry of the time fixed for the payment of the costs. As already stated the order was that in case of default of payment of the costs upto 27th October, 1934 the application would stand dismissed. The effect was that as soon as the time fixed in the order expired the application stood as dismissed and the Court no longer remained seized of the application".
8. In the second case AIR 1925 All. 280, defendant 'was twice granted adjourments on payment of costs with the direction that if the same were not paid its "defence will be struck off"/"no evidence of the defendant will be taken". Costs having not been paid by the defendant, its counsel was asked whether he was ready to pay and on his showing inability to pay the same, defendant was proceeded ex parte and the plaintiff's suit was decreed after hearing evidence. Question which came up for consideration in the High Court was whether the trial Judge was entitled to enforce his orders by refusing to take the defence evidence and by striking off the defence or whether he should have made the costs of adjournment a part of the costs in the cause. On the language of the orders granting adjournment, it was held what "they imposed certain penalties on the defendants and the learned Judge has simply enforced those penalties". Thus, the action taken by the learned trial Court was upheld. In this last mentioned Allahabad case, reference was also made to another case titled Veerabhadrappa Chetty v. Chinnamma 29 Mad. 403 wherein the learned Judges took the view that unless payment of costs is made a condition precedent of adjournment, it is not open to Court to strike off the defence and proceed ex parte.
9. Learned counsel for the respondents, on the other hand, contended that although time for payment was not fixed in the order restoring. the appeal, appellant should have paid the costs within a reasonable time. Reliance was placed on Haji Ali Muhammad Shah v. Muhammad Munawar PLD 1984 Kar.
187. In the precedent case trial Court had not specified any time for payment of the pre-emption money which the plaintiff said after more than 3 years and it was held that the plaintiff had failed to deposit the pre-emption money within a "reasonable time". Argument of the learned counsel for the respondents was that the costs having not been paid for about 10 months after the restoration of the appeal, the learned Additional District Judge was right in dismissing the appeal.
10. Learned counsel for the respondent next contended that even if it be assumed that the order restoring the appeal was not conditional so as to warrant dismissal of the appeal, impugned order could well be justified with reference to the provisions of Order XVII, rule 3, C.P.C. as the appellant, in any case, failed to comply with the Court's orders passed on the appeal file regarding the payment of costs. Learned counsel also referred to Ram Bakhsh Singh v. Mehand Hear Khan Angri and others 127 I C 27, Narendra Nath Sunyal and others v. Uma Charan Ghosh 49 I C 272 and Damdamud Tatayya and others v. Kolachina Venkata Subaraya Sastri 111 I C 168.
11. I have given my anxious consideration to the submissions made by the learned counsel for the parties. I agree with the learned counsel for the appellant that the order dated 24-3-1982 restoring the appeal did not make payment of costs a condition precedent to the restoration of the appeal and as such appeal could not be dismissed for non-payment of costs. It is quite clear from the perusal of the order quoted in para. 2 ante that it neither fixed any time for paying the costs nor did it prescribe penalty of dismissal in case of non-payment. In any case, the said order did not contain anything to suggest that in case A of non-payment of costs, appeal would be deemed to have been dismissed. Learned Additional District Judge, therefore, took a wrong view of the order aforementioned and acted illegally in passing the impugned order by holding that the appeal would be deemed to have been dismissed as a result of non-payment of costs. Cases cited by the learned counsel for the appellant also lend some support to the proposition canvassed by him in so far as the orders of the subordinate Courts which resulted in the action impugned in those cases had not only fixed the time for payment of costs but also specified the consequence of non- payment.
12. As regards the submission of the learned counsel for the respondents with reference to the orders passed on the appeal file regarding the payment of costs and non-compliance thereof, it may be noticed that even those orders did not specify that in case of non payment of costs, appeal would be dismissed. Even otherwise, it may be observed that the learned Additional District Judge did not pass the impugned order with reference to and for non-compliance of the orders passed on the appeal file. Impugned order clearly shows, that it was passed with reference to the order dated 24-3-1982 allowing the application for restoration of the appeal. Further, submission of the learned counsel for the respondents with reference to the provisions of Order XVII, rule 3 C.P.C. is also devoid of any merit. Order XVII, rule 3, C.P.C. is in terms applicable to the suits and not to the appeals. While examining the provisions of sub-rule (5) of rule 3, of Order XVII, their Lordships of the Supreme Court held in Nowsher. Khan v. Said Ahmad Shah 1983 SCMR 1092 that "the language of this rule shows that it deals with suits and is not in terms applicable to appeals. In case of the failure of a party to appear on a date fixed, the procedure applicable under Order XVII, rule 2, C.P.C. which is provided under Order IX, C.P.C. applies to suits. The dismissal and restoration of the appeals, however, are dealt with in Order XLI, rules 17 and 19 separately. As such, the procedure contained in Order XVII of the C.P.C. cannot normally be made applicable to proceedings under Order XLI of the C.P.C."
' However, even if the provisions of Order XVII are held to be applicable to the appeals by virtue of the provisions of subsection (5) of section 107, C.P.C., rule 3 of Order XVII as will be seen from its provisions reproduced hereunder is not in terms attracted to the present case:- "3. Court may proceed notwithstanding either party fails to produce evidence etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
13. Orders regarding the payment of costs passed on the appeal file from time to time (referred to in paras. 3 and 4 ante) would show that neither the appellant asked for time to pay the costs nor payment of costs was an act necessary to the further progress of the appeal. It is also significant that the learned Additional District Judge did not invoke the provision in question. Even if he had resorted to this provision, he could have decided the appeal on merits forthwith without any further adjournment but could not have dismissed the appeal summarily.
14. There is yet another aspect of the matter which renders the impugned order open to serious exception. Application for restoration of the appeal was allowed on 24-3-1982 and on the same date, appeal was in fact restored and an order was passed on the appeal file for summoning of the record of the lower Court for 7-4-1982. Thereafter, as shown above, appeal was adjourned on a number of dates of hearing for one reason or the other. On 10-1-1983 when the impugned order was passed, the appellant was not present in person. His conusel was, however, present but he was neither called upon to pay the costs nor was any opportunity afforded to the appellant to pay the costs. Submission of the learned counsel was that the appellant was throughout willing to pay the costs and even now he is ready to make the payment. Be that as it may, the fact remains that the appeal stood restored without any such condition that it shall stand dismissed or be dismissed if costs were not paid. That being so, the impugned order of the learned Additional District Judge was neither just and fair nor sustainable in law and on the facts on the record. Thus, instead of dismissing the appeal or treating it as dismissed for non-payment of costs, learned Additional District Judge should have either granted an opportunity to the appellant to pay the costs or should have decided the appeal on merits and made the costs of the restoration of the appeal a part of the costs in the cause. This is particularly so firstly because it was not a case of automatic dismissal of the appeal in the event of non payment of costs and secondly for the reason that the appeal had in fact been restored and adjourned from time to time. Learned Additional District Judge does not seem to have given any consideration to these important aspects.
15. Before concluding, I would like to briefly refer to the cases cited on behalf of the respondent PLD 1984 Kar. 187 which applied the rule of "reasonable time" for denying the benefit of the decree to the plaintiff is a judgment in a pre-emption case in which decree is required to be passed according to Order XX, rule 14, C.P.C. which provides that the Court passing the decree shall specify a date on or before which the purchase money is to be paid and direct that if the purchase money is not so paid, the suit shall be dismissed. This case is of no avail to the respondents because the order, dated 24-3-1982 restoring the appeal in the instant case not only specified no time for payment of costs but also did not contain any direction that the appeal shall be dismissed in case of failure to pay the costs.
' In 127 I C 27, ex parte proceedings against one of the defendants were set aside and he was allowed to contest the case on payment of Rs.60 by way of costs. On the adjourned date, defendant professed inability to pay the costs and the Court "proceeded to decide the case in a lengthy judgment" dated 18 of July, 1929 which judgment was held to have been passed on merits under Order XVII, rule 3, C.P.C. This case, too, is distinguishable, for the reason that the refusal of the defendant to pay the costs was covered by the language of rule 3 of Order XVII, C.P.C. as drafted by the Chief Court that is to say "who failed without reasonable cause to comply with the previous order
Or.................................................................................................................................................. " which phrase is not mentioned in Order XVII, rule 3, C.P.C. invoked by the learned counsel for the respondent. Thus the failure to pay the costs does not fall within the mischief of Order XVII, rule 3, C.P.C. Moreover, in the cited case, judgment was rendered on merits whereas in the present case, appeal had been dismissed summarily.
' In 49 I C 272, defendants' appeal was adjourned on the condition that they would give Rs. 40 as adjournment costs to the respondents which condition "they undertook to perform". They, however, failed to carry out this condition and consequently their appeal was dismissed by the learned District Judge. Action of the District Judge was upheld by the Calcutta High Court as the order granting the adjourment was interpreted to mean that "unless that condition was complied with, the adjournment would be refused". Such a meaning cannot be given to the order restoring the appeal in the present case.
' In 111 I C 168, plaintiff was not ready with the case and adjournment was granted with the direction "that the costs of the other side should be paid before the date of the next hearing". Costs were not paid and the trial Judge refused the plaintiff to cross-examine defendants' witnesses. This order was challenged in Madras High Court in a second appeal, which was dismissed. The learned Judge took the view that from language of the order granting the adjournment, "it is well-understood that unless the party ordered to pay the costs does pay before the date of the next hearing, he would have no right to be heard". This case is also distinguishable. The order restoring the appeal in the present case is not susceptible of the interpretation placed on the order granting the adjournment in the precedent case. It may also be observed that in the precedent case, appellant had relied upon Virbhha Drappa Chetti v. Chinnamma 29 Mad. 403 which case was also referred to in 1925 All.
280 cited by the learned counsel for the appellant herein but that case was distinguished by the learned Judge with the observations "In that case a Bench of this Court set aside an order of the District Court which granted Succession Certificate to a party as the other side had not paid the costs. On sending for the papers it appears that there was no condition that the costs should be paid before the date of the next hearing. What the learned Judges say is; "Such costs would ordinarily be recoverable in execution, and, in the absence of a specific order making their payment a condition precedent to hearing the counter-petitioner's evidence, the counter- petitioner's failure to pay would not render S. 158 applicable". In this case the Subordinate Judge did make an order that the costs should be paid before the date of the next hearing. That order means that unless the costs were paid before the date of the next hearing the party ordered to pay costs would not be heard".
16. As shown above, in none of the judgments cited by the learned counsel for the respondents, it has been laid down that a case can be summarily decided/dismissed for non-payment of costs even when there was no specific order making their payment a condition precedent to the hearing of the case. Virbhha Drappa Chetti v. Chinnamma, afore-referred rather supports the proposition canvassed by the appellant.
'Upshot of the above discussion is that payment of costs was no a condition precedent to the restoration of the appeal and as such appeal was not liable to be dismissed for non-payment thereof and particularly when the appeal stood actually restored and was adjourned from time to time. The impugned order of the learned Additional District Judge, therefore, cannot be sustained and the same is hereby set aside. Consequently, this appeal is accepted with no order as to costs in the circumstances of the case and the case is remanded to the learned lower Appellate Court with a direction that the appellant's appeal shall be decided afresh on merits. It is further directed that the lower Appellate Court shall grant one opportunity to the appellant to pay the costs of the restoration of the appeal.