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2000 DIGILAW 1021 (PNJ)

Jagar Singh And Ors. v. Baldev Kaur

2000-08-29

M.L.SINGHAL

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Judgment M.L.Singhal, J. 1. Baldev Kaur, through her next friend Kiran Mai, stated to be deaf and dumb filed suit for possession against Jagar Singh and others, which was dismissed in default. An application for restoration of the suit was made, which was allowed and the suit was restored to its original number vide order dated 12.2.1996 of Civil Judge, Junior Division, Sunam. Jagar Singh and others have come up in revision to this Court against the order dated 12.2.96. 2. Learned counsel for the petitioner submits that plaintiffs suit was dismissed under Section 35-B of the Code of Civil Procedure on account of non-payment of costs. Against an order of dismissal of the suit on account of non-payment of costs under Section 35-B, appeal lies as the dismissal of the suit under Section 35-B is a "decree" as defined in the Code of Civil Procedure. In support of this submission, he has drawn my attention to Budhulal Kasturchand v. Chhotelal and Ors., AIR 1977 MP 1 where it was held that "an order dismissing a suit for default in payment of costs is appealable as a decree. The word "default" in Section 2(2) of the Code refers only to non-appearance of parties as specifically referred to in Order 9 and in Order 17 Rule 2 CPC. It does not include any other default." Buthulals suit was dismissed because he did not deposit or pay, within the time fixed by the Court, adjournment costs imposed on him on the preceding date of hearing. On the date of hearing, on which the trail court dismissed the suit, the plaintiff had offered the amount of adjournment costs, which he had to pay. But the trail Court found itself powerless to extend time in as much as the plaintiff had been directed on the preceding date to pay adjournment costs before the next date of hearing and that order was preemptory; suit shall stand dismissed on non-payment of costs. Plaintiff appealed from the order of dismissal of his suit. The learned District Judge held that the appeal was not maintainable in as much as the order of the trial court was not a decree. The plaintiff then preferred this second appeal. Plaintiff appealed from the order of dismissal of his suit. The learned District Judge held that the appeal was not maintainable in as much as the order of the trial court was not a decree. The plaintiff then preferred this second appeal. It was heard by a learned single Judge, who found that the law was not certain because the authorities were not uniform or consistent on the question whether the Court has power to extend time for depositing costs in spite of the order imposing costs being pre-emptory. Learned Single Judge referred the matter to a larger Bench for the decision of the following questions:- "(1). Whether it was necessary before the time could be extended under Sections 148 and 149, Code of Civil Procedure, that an application should be filed before the period allowed by the Court had run out and whether the Court is clothed with ample powers under Section 151, CPC, to give redress in such cases? (2). Whether the words dismissed in default also refer to default committed in respect of adjournment costs?" 3. Full Bench allowed the appeal and set aside the order of the trial Court and directed the trial Court to proceed further with the suit as if the suit had not been dismissed, in view of its finding, that the trail court had the power to grant adjournment for payment of costs. 4. It is submitted that the suit was dismissed for non-payment of costs subject to adjournment for filing replication. On 7.8.95, replication was not filed. Adjournment was requested and was granted subject to payment of Rs. 100/-. On 22.8.95, cost was not paid. Plaintiff was not ready to pay cost. Plaintiffs suit was dismissed for want of prosecution under Section 35-B CPC. He has drawn my attention to Lakhmi Chand & Sons v. Parmancmda Khemka & sons, 1996(3) R.C.R. (Civil) 234 where it was held that "where the plaintiff is not willing to pay costs despite adjournments, trial court has no option but to dismiss the suit and cannot permit further prosecution of suit. An order of dismissal of suit for non-payment of costs imposed under Section 35-B CPC is appealable under Section 104 (1) (ff) of the Code of Civil Procedure where appeal is provided, no revision petition can be entertained." He submits that no revision lay against the impugned order instead appeal lay before the District Judge. An order of dismissal of suit for non-payment of costs imposed under Section 35-B CPC is appealable under Section 104 (1) (ff) of the Code of Civil Procedure where appeal is provided, no revision petition can be entertained." He submits that no revision lay against the impugned order instead appeal lay before the District Judge. 5. Learned counsel for the respondent, on the other hand, submits that order dismissing the suit for non-payment of costs imposed under Section 35-B CPC is revisable. In support of this submission, he has drawn my attention to Shri Anand Parkash v. Shri Bharat Bhushan Rai and Anr., (1981) 83 P.L.R. 555 (Full Bench) where it was held that "in the event of the party failing to pay the costs on the date next following the date of the order imposing costs, it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be and that no other extraneous consideration would weigh with court in exercising its jurisdiction against the delinquent party. However, where the costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power under section 148 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction." 6. Learned counsel for the respondent further submits that it is a suit by deaf and dumb person filed under Order 32 CPC. Assuming that next friend of the plaintiff was not diligently prosecuting the suit and had committed foul with the plaintiff, the Court should have appointed some other next friend for the plaintiff for the prosecution of her suit and the suit could not have been dismissed for want of prosecution. He submits that in this case, Kiran Mai, daughter of the plaintiff, who was acting as her mothers next friend could not appear before the court on 22.8.95 as she was in advanced stage of pregnancy and she delivered a daughter on 22.8.95 and she remained in confinement till 15.9.95. 7. In my opinion, trial Court has made quite proper exercise of jurisdiction while ordering the restoration of the suit dismissed vide order dated 22.8.95. 7. In my opinion, trial Court has made quite proper exercise of jurisdiction while ordering the restoration of the suit dismissed vide order dated 22.8.95. I do not see any material irregularity or illegality in the exercise of jurisdiction by the court while allowing restoration of the suit and setting aside its dismissal. 8. Revision dismissed.