1. In this case the defendants appeal from an order of the learned Subordinate Judge of Rajshahi whereby be reversed an order of the Munsif of Naogaon. It appears that the plaintiff brought two rent suits against different defendants, that in April 1925 these suits were decreed by the trial Court, that appeals were brought to the Subordinate Judge against the decrees and that on 14th February 1927, the Subordinate Judge first of all allowed the appeals, set aside the decrees and remanded the cases for fresh trial on the lines laid down by his judgment upon payment of Rs. 15 in each case for costs by the plaintiff to the defendants. His order went on to say:
If this cost is not paid within two months from the date of arrival of the record in the original Court, the suit shall be dismissed. If this costs is timely paid, then there shall be a retrial.
2. It seems that the record was not received in the trial Court until 8th April 1927. Two months elapsed without the plaintiff paying the Rs. 15, but on 27th June Rs. 15 was deposited in Court in each case. That payment was made under an order to which the defendants were not parties. The plaintiff applied to the trial Court and he called the attention of the trial Court to the fact that he was out of time. The trial Court took the view that there was some excuse for being out of time and that the clerk in the office ought to have drawn the attention of the plaintiff's pleader at the time when the record was received back by the trial Court. It therefore made the order that the plaintiff should be allowed to deposit the money and it was deposited and the fact of the deposit was a few days afterwards brought to the notice of the pleader for the defendants. From time to time the question of rehearing of the suits was on the trial Court's list and the hearing was adjourned-until some time in June 1928, In the meantime the Rs. 15 for costs was lying in the trial Court and it appears that on 18th November 1927, the pleader for the defendants got an order entitling him to take it out, and just a few days before the hearing was coming on, another order was made enabling the money to be returned by the defendants at their own risk. This incident of taking out and returning was in one of the two suits before us only and not in the other.
3. In these circumstances the learned Munsif, when the matter came before him on remand, held that the condition upon which alone the retrial was directed had not been complied with, that he had no jurisdiction to proceed with the rehearing of the suits, that the order allowing the costs to be deposited had done no harm in itself but it certainly could not amount to a valid order having regard to the terms upon which the retrial was directed. That matter came on appeal before the learned Subordinate Judge who took another view. He appears to have considered the original order of 14th February 1927, as a direction to the Court below would dismiss the suits if something was not done. He also considered that the fact that the return of the record was not brought to the notice of the plaintiff's pleader was an almost complete excuse for the plaintiff's pleader and the plaintiff for not complying with the term of the order. He therefore directed the trial Court to proceed with the hearing of the suits. From that order the present appeals have been brought. The first question is as to the meaning of the order of 14th February:
If this cost is not paid within two months from the date of arrival of the record in the original Court, the suit shall be dismissed this cost is timely paid, then there shall be a retrial.
4. It appears to me quite clear that the only right of the plaintiff to have a retrial was conditional upon his making the payment in time and that it was not necessary for the lower Court to exercise any sort of discretion in the matter. If the payment was not made within that time, the intention was that the suits should stand dismissed without further order. On that view it appears to me that the view taken by the learned Munsif was correct. The learned Subordinate Judge appears to think that, because it is inconvenient for pleaders to have to come and to ask from time to time whether records have been returned, and therefore to assist them the Court makes the practice of calling the fact of the return of the record and many other things to the notice of the pleaders, any failure of this endeavour on the part of the Court is a complete excuse in such a case as the present for the parties in not complying with their obligations under the decree. That seems to me to be entirely wrong. I cannot agree with the learned advocate for the respondent that the facts here show a great hardship so far as the plaintiff is concerned. It is true that there was a delay of two months in the return of the record. Accordingly the plaintiff' had something like four months after the order in which to make the deposit. It may be very natural in an ordinary case to rely upon the Court and its clerks being sufficiently diligent to give notice of the return of the record. But the duty must be upon the party to make inquiry and if he makes no inquiry for a period of over four months he being the person whose right to a retrial is dependent upon making timely payment, I cannot say that he has any none except himself to blame. However that may be, it does seem to me that on the lapse of two months the plaintiff had lost his chance except possibly by proceeding to the Court which made the appellate decree and asking it in review for an extension of the time limited in the circumstances of the case. If the order was not a decree it may be that by going to the appellate Court he could have got the time extended under Section 148, Civil P.C, but that perhaps is a very doubtful question. He did nothing of the sort. He got an order ex parte for paying the money into Court and then the cases drifted on until this point which went to the jurisdiction was taken in Court.
5. In one of the two suits we have to consider whether the fact that the pleader could not resist taking the money out of Court on 18th November 1927 and returned it on 27th July 1928, is a fact which can operate to give the plaintiff a right to retrial. I have some difficulty in this matter but, on the whole, it does not seem to me possible that a suit which has been dismissed can be revived by such a mistake in the proceedings as that. If it were a question of appealing from the order of the appellate Court, no doubt by taking out this money he would have debarred himself from any right of appeal; but if the suit stood dismissed on a previous date some months before, it does not seem tome that the taking out of the money and returning it could possibly revive the suit or give jurisdiction to the trial Court when the decree of the appellate Court or the order of the appellate Court no longer justified a retrial. In these circumstances it appears to me that these appeals should be allowed, that the order of the Subordinate Judge should be set aside and the order of the Munsif restored with costs in this Court and in the lower appellate Court. The hearing fee is assessed at two gold mohurs in each case. No order is necessary on the applications.
C.C. Ghose, J.
6. I agree.