The respondent-Bank filed a suit for recovery of a certain amount. The suit proceeded and 11th October, 1995 was the date fixed for hearing. The suit was proceeding ex-parte as the defendants had not put in appearance.
This attitude of the defendants who are the revisionists before this Court led to the passing of the impugned order dated 10.10.1997 imposing a condition that the defendant shall deposit a sum equivalent to 10% of the amount as claimed in the suit which would be refundable in the circumstances as defined in the impugned order itself.
This revision was preferred by the defendants questioning correctness of the said order as being beyond the purview of the court to impose such a condition while exercising powers under Rule 7 of Order IX of the Civil Procedure Code, and this Court way back in the year 1997 stayed all further proceedings in the suit.
A stay vacation application and a counter affidavit have been filed by the respondent-plaintiff bank explaining the attitude of the defendant-revisionists in lingering on the suit and not cooperating with the Court in the final hearing of the case. No rejoinder to the said counter affidavit and stay vacation has been filed by the Revisionist till today.
I have heard Sri Saurabh Rai holding brief of Sri Y.S. Saxena, learned counsel for the applicant-revisionist and Sri Amrish Sahai for the Respondent State Bank of India holding brief of Sri R.B. Sahai.
The suit is of the year 1986. The order to proceed ex-parte was passed in the year 1995 and the impugned order was passed in the year 1997. This revision was entertained and has remained pending for 15 years. Thus, the suit remains pending for the past 26 years without any hearing and disposal.
It is in this back ground that the conduct of the defendant-revisionist was taken notice of by the court below and it proceeded ex-parte and passed an order on 11th October, 1995. An application to set aside the order was moved after almost 1-1/2 years and this fact was taken notice of while imposing the condition as is impugned in the order under challenge before this Court.
Learned counsel for the applicant contends that the court below has committed a material irregularity by travelling beyond the scope of the provisions of Rule 7 of Order IX of the Civil Procedure Code by imposing such a condition of depositing an amount which is yet to be adjudicated and such unliquidated amount cannot be imposed by way of costs. He contends that Rule 7 of Order IX of C.P.C. contemplates the imposition of costs or otherwise and, therefore, the words otherwise should be read as ejusdem generis to the word "cost" and not beyond the same.
Replying to the aforesaid submissions Sri Sahai submits that the word "otherwise" is relatable to any of the terms that can be imposed by the Court and, therefore, the order impugned does not fall within the definition of any irregularity much less a material irregularity for invoking the provisions of Section 115 C.P.C.
Having considered the aforesaid submissions and facts on record, there is no doubt that the defendants were not cooperating with the Court that led to the passing of the order on 11th October, 1995. They, however, moved an application under Order IX Rule 7 C.P.C. and the Court passed the impugned order for depositing 10% of the amount claimed under the plaint allegations. In the opinion of the Court the word otherwise used in Order IX Rule 7 C.P.C. does not contemplate the imposition of such a condition and it only indicates that the Court can pass an order of imposing costs or impose any such terms otherwise that may be in the nature of costs. The amount directed to be deposited, therefore, cannot be made refundable as has been done by the trial court. In my opinion, the impugned order is manifestly contrary to the scope of the provisions of under Rule 7 of Order IX of C.P.C., and cannot be sustained.
At the same time, keeping in view the attitude of the defendant and the manner in which the case has proceeded, it would be in the interest of justice to impose costs for the purpose of allowing the applicant-defendant to participate in the suit from the stage that the ex-parte order was passed on 11th October, 1995.
In my opinion a sum of Rs. 5,000/- as cost would be sufficient for the said purpose which shall be deposited by the defendant-revisionist before the Court below within one month from the date of passing of this order.
The revision is allowed. The order dated 10.10.1997 is set aside. The ex-parte order dated 10.10.1995 is also set aside as costs have been imposed by this Court and the suit shall now proceed on day to day basis without any further unnecessary adjournments being granted to the defendant-revisionist.
Allowed subject to the aforesaid directions.
Order Date :- 5.11.2012 Manish