IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.1902 of 2008 Mahendra Prasad Singh & Anr Versus Vikas Singh ---------------------------------- For the petitioners: M/S Naresh Chandra Verma & Lakshmi Kant Tiwary For the opposite party: Mr. Shyam Prasad Mukherjee & Mr. Gyanand Roy 3 8-9-2011 This revision application has been filed against the order dated 21-8-2008 passed by the Munsif, Supaul, in Miscellaneous Case no. 32 of 2001 by which the petition under Order 9 Rule 13 C.P.C. was allowed and the Title Suit No. 12 of 1997 has been restored to its original file. There is no dispute that the petitioners had instituted Title Suit No. 12 of 1997 impleading Smt. Pratima Singh as party defendant in that suit. The said suit has been decreed ex-parte by judgment and decree dated 20- 1-2000. Thereafter a petition under Order 9 Rule 13 C.P.C. has been filed by Bikash Singh, son of defendant, Pratima Singh, acting as her power of attorney holder, which fact had been mentioned in the title page as well as the contents of the Miscellaneous Case No. 32 of 2001 which had been initiated on the petition under Order 9 Rule 13 C.P.C., as mentioned above. The Miscellaneous Case No. 32 of 2001 2 was clearly beyond the period of limitation and the explanation in that regard has been submitted in the Miscellaneous Case itself asserting the same to be within the prescribed period from the date when the applicants of the Miscellaneous Case acquired the knowledge regarding the ex-parte decree. The plaintiff-petitioners contested the Miscellaneous Case mainly on two grounds; firstly that the original defendant, Pratima Singh, herself did not file the Miscellaneous Case and secondly the Miscellaneous Case was barred by law of limitation. After hearing the parties the learned court below allowed the Miscellaneous Case, set aside the ex-parte order and restored Title Suit No. 12 of 1997 on the condition of the applicant paying cost of Rs.1000/- to the plaintiffs. The learned counsel appearing on behalf of the petitioners in this case has submitted that non-impleading of Pratima Singh, as applicant and her non-examination as a witness in the said proceeding were the circumstances which are fatal to the Miscellaneous case under Order 9 Rule 13 C.P.C. It has further been submitted that the bar of limitation has not been condoned by the learned court below and as such the impugned order is vitiated. 3 A counter-affidavit has been filed on behalf of the opposite party and in the said counter-affidavit it has been specifically stated that the plaintiff-petitioners had been paid cost of Rs.1000/- which had been awarded by the court as condition precedent for restoring Title Suit No. 12 of 1997. The learned counsel appearing on behalf of the opposite party on that basis has raised a preliminary objection regarding the maintainability of this revision application and reliance has been placed on a decision in the case of Bijendra Nath Srivastava Vs. Mayank Srivastava, reported in A.I.R. 1994 Supreme Court 2562. The learned counsel appearing on behalf of the petitioners has accepted that no rejoinder has been filed on behalf of the petitioners denying this averment regarding the payment of cost and acceptance by the plaintiff-petitioners, butt he has tried to wriggle out of the aforementioned decision of the Apex Court by submitting that the order of cost awarded in the suit was not a condition precedent for the restoration of Title Sit No. 12 of 1997. Heard the learned counsel for the parties and considered their submissions. A perusal of the last portion of the impugned order makes it clear that the learned court 4 below has set aside the ex-parte decree and restored Title Suit No. 12 of 1997 by imposing cost of Rs.1000/- by the defendant-opposite party. The tenor of the order clearly suggests that the cost was imposed by way of condition and there is nothing to infer from the impugned order that the imposition of cost was an addition and not a condition precedent for restoration of the suit. In paragraph no.20 of the decision in the case of Bijendra Nath Srivastava Vs. Mayank Srivastava, reported in A.I.R. 1994 Supreme Court 2562, relied upon the learned counsel for the opposite party , the Apex Court has considered the consequences which follow when a conditional order is passed and such cost is accepted by a party and it has been held as follows: “…..In such a case it is open to the party not to accept the benefit of cost and thus avoid the consequence of being deprived of the right to challenge the order on merits.” In the present case, as noticed above, the imposition of cost was clearly a condition precedent to the restoration of the Title Suit. Once the plaintiff-petitioners have accepted the said cost, it would not be open to them to challenge the said order on merits also. Moreover, the result of the impugned order will be only that the suit would be heard on merit and would be decided as such. The plaintiff- 5 petitioners have been compensated for the expenses they had incurred uptil the passing of the ex-parte decree. In view of the substantial justice having been done between the parties, this Court is reluctant to interfere with the impugned order. On the basis of the discussions made above, this revision application has got no merit. It is, accordingly, dismissed. roy ( V. Nath, J.)