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Judgment
Ramachandra Ayyar, C.J.—In this case I am constrained to say that the order passed by the lower Court can hardly be held to conform to
the sound judicial procedure. The Petitioner''s suit challenging certain alienations made by her mother was first disposed of on a preliminary issue.
On appeal it was remanded for trial on other issues. That was by the order of this Court, dated 20th December 1960. The suit was then posted
before the learned Subordinate Judge on 8th June 1961 for trial. On that date, the Plaintiff was absent and the suit was thereupon dismissed for
default. The Plaintiff then filed an application for setting aside the order of dismissal of the suit putting forward certain reasons as to show that she
was prevented from appearing in Court on 8th June 1961. Even before disposing of that application, the learned Subordinate Judge as a condition
to the hearing of that very application directed the deposit by the Petitioner of the entire costs decreed in the salt which was disposed of on 8th
June 1961. I am unable to see under what provision of law the learned Subordinate Judge purported to pass such an order. The suit has been
dismissed for default. The statute, namely, the CPC gives the party against whom an order is passed a right to approach the Court and satisfy it
that he was prevented by sufficient cause from appearing before the Court on the date when default occurred; if the Court is so satisfied, the party
has a right to have the dismissal of the suit set aside. That right cannot be curtailed or restrained by insisting upon the party performing any act, e.g.,
depositing the entire costs of the suit as condition precedent to the hearing of the application. It may be that if ultimately after hearing the party, the
Court finds that a conditional order should be passed for restoration of the suit, it will have jurisdiction to impose such conditions as may be just
and reasonable. But that stage has not yet reached in the present case. The application for the restoration of the suit is still pending. In my view,
therefore, the lower Court will have no jurisdiction to impose the condition it did.
That, however, is not the only error in the order of the lower Court. Even before hearing the petition for setting aside the order of dismissal of
the suit the learned Judge has remarked.
The suit is about seven years old. The conduct of the Petitioner-Plaintiff does not appear to be bona fide. It appears that he is bent upon
protracting the trial of the suit. I, therefore, consider that this is a fit case where she should deposit the entire costs of the suit.
As I said, the suit was remanded for trial in the year 1960. How its antecedent pendency can have any relevance to the matter of bona fides of
the Petitioner, I fail to see. Secondly the observations of the learned Subordinate Judge practically amount to his pre-judging the application for
restoration of the suit which he has yet to dispose of. This is hardly consistent with sound judicial procedure. Prejudice on the part of the Court can
hardly help in the due administration of justice. The order of the lower Court will be set aside and the matter remitted for disposal afresh in
accordance with law. Having regard to the expression of opinion by the learned Subordinate Judge I consider that the proceedings in this case
should be disposed of by the Additional Subordinate Judge. The matter will be transferred to him. There will be no order as to costs.