' This second appeal is against an affirming order dated 16-4-1970, of District Judge, Campbellpur, passed in Civil Appeal No,382 of 1969. Appellant was plaintiff in the suit brought by him to challenge the consolidation of lands in village Malak Mala Tehsil Attock. Defendants resisted the suit and raised some preliminary objections in addition to denying the claim of the plaintiff on merits. In order to resolve these preliminary objections, the trial Court setiled following issues on 12-7-1968:-
(1) Whether the Civil Court has no jurisdiction to hear the dispute?
(2) Whether the value of the suit for purposes of court-fee as well as jurisdiction is incorrect. If so, what is the correct value?
(3) Whether the suit is barred by limitation?
(4) Whether the plaintiff has no locus standi to bring the suit?
(5) Relief.
2. After settlement of issues, the suit was postponed to 5-10-1968 for evidence of the parties. On the adjourned date, the plaintiff and his counsel failed to appear whereas the defence counsel was present. Consequently, the trial Court dismissed the plaintiff's suit with costs, for his default, under Order IX rule 8, C.P.C., on 5-10-1968. It may be observed that in the dismissal order, the trial Court had noted that the plaintiff had neither summoned the evidence nor the same was in attendance.
It may be noticed that the suit had been adjourned for evidence of both the parties and onus to prove the preliminary objections and issues raised thereon, in the first instance, rested upon the defendants.
3. On 15-10-1968, plaintiff applied to the trial Court for restoration of the suit. It was stated that on the date fixed for hearing, plaintiff could not attend the Court because of his indisposition.
Defendants contested the application by denying the averments in the restoration application. On 16-1-1969, the trial Court formulated following issues:-
(1) Whether there was sufficient cause for the plaintiff to remain absent on the date of hearing?
(2) Relief.
' On consideration of the evidence led in support of the restoration application, the trial Court found "There is no reason to disbelieve Dr. Muhammad Riaz Khan Alizai who has stated that the plaintiff could not move about and he had advised him rest for about a week. The very fact that he had not brought his record with him would not be sufficient to ignore his testimony. As is apparent from the record, the suit relates to substantial property. The plaintiff was directed to produce the evidence on 5-10-1968 for the first time after the issues were framed. He had not summoned any witnesses and his suit was dismissed in default. This was for the first time that he was asked to lead evidence.
He was negligent in not summoning the witnesses at the proper time. It appears that he could not come to the Court due to his illness which is supported by the evidence of the medical man. I see justification in holding that there was sufficient ground for the plaintiff petitioner to remain absent on the date of hearing. He, however, could contact his counsel through his some relatives or otherwise but he has not done so." Operative part of the order restoring the suit reads. "I, therefore, accept the application and restore the suit subject to the condition of the payment of costs of Rs,100." On the same day, an order in vernacular was recorded in the original suit which was adjourned to 13-6-1969 for evidence of the parties. On the adjourned date, plaintiff requested for further adjournment stating that his Advocate had gone to Peshawar. The trial Court holding that neither sufficient cause was made out for adjournment nor costs had been paid, closed the plaintiff's evidence Under Order XVII rule 3, C.P.C., and dismissed the suit again.
4. Plaintiff filed an appeal against this order. Learned District Judge agreed with the trial Court and dismissed the appeal on 16-4-1970. The appellate Court observed: "I have heard parties' counsel and have examined the record. Since it was expressly directed by the trial Judge vide his order, dated 6-5-1969, that on payment of necessary costs, the case shall be restored and evidence be produced on 13-6-1969 on which date none of the directions was complied with by the appellant, nor was he prepared on the said date to pay the costs, so, his suit was rightly thrown out. I see no force in the appeal, which is hereby dismissed. No order as to costs." Aggrieved by this decision, plaintiff has appealed to this Court. His appeal was admitted to hearing on 28-1-1971.
5. It is manifest from the records that the trial Court dismissed the plaintiff's suit on two grounds.
Firstly, that he had not paid the costs subject to which the suit was restored, and secondly, he had not produced the evidence. As for the second ground, it is sufficient to observe that onus of proof in regard to all the preliminary issues rested on the defendants and it was for them to first open the defence and lead evidence. In the background of the facts noted above, two points of importance arise for consideration. First point " was in ,regard to conditional order of restoration and its effect and the second point was whether the plaintiff in the existing circumstances could be granted any relief from the Court. As is seen from the restoration order, plaintiff had succeeded to convince the trial Court that he had sufficient cause for his absence on the date of hearing. Only negligence ascribed to him was that he had not produced the evidence on the date fixed for hearing and for that default, he was burdened with payment of Rs,100 as costs to the other party. Whether the Court could make an order for payment of costs after having held that the plaintiff had sufficient cause for his absence, and also when the onus probandi in regard to all the issues rested upon the defendants, I do not propose to offer my comment because legality of this order has not been seriously contended. Order IX, rule 9, C.P.C. Makes clear provision for passing of a conditional order.
Therefore, an order restoring the suit dismissed for default on condition of payment of costs to the opposite party is perfectly a valid order. In the case of Foundation Overseas Limited v. Punjab National Bank Ltd. And another (AIR 1977 Cal. 428), it was observed that "The provisions of 0. IX, R.9 have two limbs; the first limb gives a right to the plaintiff, whose suit had been dismissed, to make the application for restoration of the suit. In doing so, it is an obligation on his part to satisfy the Court that there was sufficient cause for his non-appearance in Court when the suit was called on for hearing. Once he can satisfy the Court, he is entitled to an order setting aside the dismissal but upon such terms as to costs or otherwise as the Court might think fit to impose upon him depending upon the facts and circumstances of each case. The second limb provides for the power given to the Court to make the conditional order setting aside the dismissal when the Court is satisfied and sufficient cause has been made out for the non-appearance of the plaintiff. In making such an order the Court has been vested with the discretion to decide what costs, if any, would be imposed as a term to set aside such dismissal. Only this part of the order is discretionary.
Otherwise, when the Court is satistifed about the sufficient cause being made out for his non- appearance, the Court is bound to make the order for setting aside the dismissal." There are number of provisions in Code of Civil Procedure under which the Court either fixes or grants time for the performance of certain acts such as Order VI, rule 18, Order VII, rule 11(b) and (c). In all such cases, the Court is given power under section 148 of the Code to enlarge the time even after the time originally fixed appears to have expired. However, there is some divergence of judicial opinion as to the power of the Court to enlarge time in case of a peremptory order fixing certain time for doing of an act and also providing the effects of non-compliance. In some cases, inherent powers of the Court have been relied upon to give relief to a defaulting party. See Mahanth Ram Das v.
Ganga Das AIR 1961 SC 882, Kanduri Sahu v. Nidhi Sahu and others AIR 1966 Orissa 44. However, the restoration order passed in the case neither gave a fixed time limit for payment of costs nor went on to say that if the condition as to payment of costs was not complied with, the application for restoration was to stand dismissed. It is clear that no penalty in the event of the non- compliance with the order as to payment of costs was imposed. No doubt, it was in the power of the Court to fix time for payment of costs and also provide the consequences of default. Therefore, if the Court was anxious that its order allowing the application on payment of costs to the other party must be obeyed, it should have been careful to provide in its order, what consequences will follow, in case it is not complied with. A glance at the restoration order would suffice to indicate that though the restoration of the suit was conditional upon payment of costs to the other party, yet consequences of default were not specified. It is not in dispute that the costs were not paid by the plaintiff on the adjourned date fixed for evidence of the parties. Malik Muhammad Jaffer, Advocate, says that the plaintiff was ready and willing to pay the costs and his failure to do so was due to his not knowing fully the import of the restoration order. His argument was that the plaintiff understood that the payment of costs was linked with production of evidence by him and since the plaintiff's counsel was not present, he was not obliged to pay the costs before he could give his evidence. The explanation cannot be held to be implausible altogether. It has some merits. An important feature of the case which must not go unnoticed was that if the Court had declined adjournment to the plaintiff, it could have taken the evidence of the defendants who were first to start because, onus of proof of all the issues rested upon them, and, the plaintiff could lead evidence only after the defence had concluded its evidence. The trial Court as well as the appellate Court did not at all advert to the proper issues arising for decision in the case, as also the point whether the time for payment of costs could be extended under section 151, C.P.C. Before concluding, I may also like to quote an apposite extract from the judgment of Supreme Court of India in Mahanth Ram Das v. Ganga Das AIR 1961 SC 882. It reads:- "How undesirable, it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay.
They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation . Such as this and to have restored a suit or proceeding, even though a final order had been passed. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari, I L R 4 Pat. 61: ( AIR 1924 P C 198)." In my opinion, lower Courts were wrong in dismissing the suit on the grounds noticed by them. Therefore, their decisions cannot be upheld.
6. In view of the aforesaid, second appeal is allowed, impugned decisions are set aside and the case is remanded to the original Court with direction to proceed with its trial in accordance with law. Plaintiff shall deposit the amount of costs (Rs,100) in the trial Court within two months and shall also pay Rs,1,000 (Rupees one thousand) as costs of this appeal to the respondents within the same period. In default of compliance as to payment of above sets of costs, the remand order shall not operate and the appeal shall be deemed to have been dismissed with costs.
7. Records be returned. As the cause has already suffered enough delay, the trial Court is directed to expedite hearing of the suit and endeavour to conclude its trial expeditiously.