Varghese Antony vs Fr. Antony Kochuveettil

V. Chitambaresh

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 Art. 227 of the Constitution of India? 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 ''C.P.C. for short):

(i) An application under R. 9 of O.IX C.P.C. for an order to set aside the dismissal of a suit.

(ii) An application under R. 13 of O.IX C.P.C. 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.

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 R. 9 of O.IX C.P.C. is appealable under O.XLIII R. 1 (c) C.P.C. Similarly an order rejecting an application under R. 13 of O.IX C.P.C. is appealable under O.XLIII R. 1 (d) C.P.C. Therefore a challenge to the liability to pay costs or its quantum while allowing applications under R. 9 of O.IX C.P.C. or R. 13 of O.IX C.P.C. can be in an appeal only. An Original Petition under Art. 227 of the Constitution of India need not be entertained under the circumstances.

The words ''sufficient cause'' occuring in R. 9 of O.IX C.P.C. and R. 13 of O.IX C.P.C. is an elastic expression for which no hard and fast guidelines can be prescribed. (See G.P. Srivastava Vs. Shri R.K. Raizada and Others, ). 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 Art. 227 of the Constitution of India.

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. Raghubir Saran Charitable Trust and Others, . But costs normally fixed as a condition for allowing applications under R. 9 of O.IX C.P.C. or R. 13 of O.IX C.P.C. should not be substituted by the higher courts. The courts below had after all the advantage of verifying the merit of the lis and the conduct of the parties in fixing the costs.

The instant case deals with an order passed on an application filed under R. 9 of O.IX C.P.C. 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 R. 9 of O.IX C.P.C. making it appealable.

The further order of dismissal for default of compliance merely records the legal position which had arisen from non-fulfillment 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 refer to the following observation in Smt. Sushila Devi Vs. Ramanandan Prasad and Others, :

This no doubt was a conditional order but a conditional order is not necessarily an interlocutory order as the High Court appears to have thought The order made it clear that on failure to pay the first instalment within the specified period the benefit of the order would be lost which gave it a finality; no other order was necessary for disposing of the application under S. 3 perhaps possibly making a note as to whether or not the first instalment had been paid in time.

The decision in Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others, also lends support to the conclusion. The dictum in Karuppan alias Cherunni v. Sankaran Nair ( 1972 KLT 643) to the extent that only the consequential order is appealable is no longer good law.

Mockett, J. in Ramayya Vs. Lakshmayya, observed as follows: It seems to be nothing more than the recording of the legal position, which had arisen from the non-fulfillment of a condition precedent by the appellants...... But in my view, no further order was passed at all and the reason as I have indicated, is that no further order was required.

Bell, J. sitting with Mockett, J. agreed to this proposition in law. Mack, J followed this dictum in Balarama Reddi Vs. Subbarama Reddi and Another, observing as follows:

With great respect, I am in agreement with the view taken by Mocket and Bell JJ. that the first order in such cases must be regarded as final and appealable. It is tantamount to a rejection of an appeal unless certain conditions are satisfied. It is open to a party affected by such an order to appeal on the ground that the conditions imposed are too onerous, that the ex parte decree should be set aside or the suit restored to file without any terms at all.

The High Court of Madras has consistently followed the dictum laid down in Ramayya''s case aforecited in the following decisions as well: (i) Selambal and Another Vs. Mannankatti and Others, .

(ii) Basil Products Vs. Mathuram Perumal and Others, .

The dictum in Karuppan alias Cherunni''s case has been expressly refused to be followed in Selambal''s case wherein it is reiterated that conditional orders are itself final.

The upshot of this discussion is that the Original Petition is not maintainable. The same is rejected in limine.