1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.1034 of 2009 IN Suit No.2889 of 2007 Prakash M. Dawda .. .. Plaintiff v/s. Smt.Hiralakshmi P. Shah & anr. .. Defendants Mr.A.P. Singh for Plff. Mr.Anil D'Souza for Defts. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 24 th March 2009 P.C. : 1. The Defendants tender their Affidavit- in-reply. Copy was not earlier served upon the Plaintiff's Advocate. The Plaintiff's Advocate is directed to proceed on the basis of denials. 2. This Suit was dismissed on 13.2.2009 when the Plaintiff failed to appear as the order dated 19.12.2008 directing the Plaintiff to pay the costs of Rs.25,000 /- were not paid. The costs were to be paid upon the dismissal of the Plaintiff's Notice of Motion. The costs were to be paid within 8 weeks. The 8-week period of time expired on 13 th February 2009. 3. The Suit appeared on board on 13 th February 2009 itself. The Plaintiff was not present. The Plaintiff's Advocate has 2 argued that at about 11.15 a.m., the Suit came to be dismissed. 4. The Plaintiff sought to pay costs as directed. That could not be paid in a Suit which was already dismissed. It is the Plaintiff's case that the Plaintiff approached the Defendants' Advocate offering the costs to be paid. The Defendants' Advocate did not accept it as the Suit was already dismissed. 5. On 16.2.2009, the Plaintiff made an oral application tendering Rs.25,000 /- in Court and requesting for the Suit to be restored. The Defendants' Advocate refused to accept the amount in Court as the Suit was dismissed. The amount was returned to the Plaintiff. The Plaintiff was directed to take appropriate steps. 6. The Plaintiff has taken out this Notice of Motion for restoration of the Suit. 7. This application is made under Order IX Rule 9 of the CPC as the Plaintiff had not appeared when the Suit was called out. The Defendants had appeared. The order of payment of costs was naturally brought to the notice of the Court by the Defendants' Advocate. 3 8. The Defendants' Advocate contends an application for restoration of the Suit is made under Order IX Rule 9 of the Civil Procedure Code (CPC), which contemplates only an application for restoration of a Suit dismissed under Order IX Rule 8 of the CPC for default of his appearance. This Suit came to be dismissed because the Plaintiff had not paid costs as directed. Hence he contends that this application cannot be made under Order IX Rule 9 of the CPC. 9. It is seen that the payment of costs is, in fact, not delayed beyond time. It was because on the last date of the payment of costs the Suit appeared on board that it came to be dismissed. It was dismissed essentially upon the Court being informed that the Plaintiff had failed to carry out earlier directions. As the Plaintiff was absent, this fact could not be ascertained from him. Hence there is a clear error of the Court in dismissing the Plaintiff's Suit in the forenoon of that day by which the Plaintiff was not allowed to carry out the directions for payment of costs. The Plaintiff could have paid the costs until the end of that day. Hence the Plaintiff must be granted the right and liberty to pay costs and agitate his action. 10. The application for restoration of such dismissed Suit is required to be considered under Section 151 of the CPC 4 since the Court, which passed an order for dismissal of the Suit for non- payment of costs upon the Defendants so informing the Court, can pass an order allowing the payment of costs albeit on a delayed date for not dismissing the Plaintiff's action so that the Plaintiff can be heard on merits. 11. It must be mentioned that merits, if any, of the Plaintiff's claim is not required to be agitated or decided in this Notice of Motion. That would be done in a Notice of Motion taken out by the Plaintiff for interim reliefs in the Suit or in the Suit itself. 12. Hence the following order:- ORDER The Plaintiff is directed to pay costs of Rs.25,000/- to the Defendants' Advocate in Court itself. The order dated 13.2.2009 is set aside. The Suit is restored to file. 13. Notice of Motion disposed of accordingly. (SMT.ROSHAN DALVI, J.)