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2002 DIGILAW 117 (PNJ)

Dinesh Singla v. Surekha Singla

2002-01-25

M.M.KUMAR

body2002
Judgment M.M.Kumar, J. 1. This revision petition raises the question as to whether the suit of the petitioner-plaintiff is liable to be dismissed if he has failed to deposit the amount of costs imposed on the previous date of hearing. 2. The present petition is directed against the order dated 1.8.2001 passed by Civil Judge (Junior Division), Moga. The petitioner-plaintiff has instituted a suit on 5.4.1999 for permanent injunction with a prayer that respondent-defendants be restrained from alienating the land including structures thereon and disposing of the property of the company without the authority of law. The suit has come up to the stage of evidence of the petitioner-plaintiff after the pleadings were complete. On 1.8.2001, the case was fixed for evidence of the petitioner-plaintiff which was subject to payment of costs of Rs. 200/-. The learned counsel in the trial Court appearing for the petitioner-plaintiff expressed his inability to pay the costs and requested for deferment of hearing. It was in these circumstances that the Civil Judge recorded the order closing the evidence of the petitioner-plaintiff and proceeded to dismiss the suit for want of evidence and for non-payment of costs. The impugned order dated 1.8.2001 reads as under :- "No PW is present. Adjournment requested. Learned counsel for the defendants demanded costs which had been burdened on the plaintiff on the previous date of hearing i.e. on 15.5.2001. Learned counsel for the plaintiff suffered statement that the plaintiff has not come present today. He does not know the reason about his absence, as such, he cannot produce any evidence on behalf of the plaintiff. He does also not pay the amount of costs on behalf of the plaintiff. Date be given for evidence of the plaintiff and payment of costs. In this suit, the case had been adjourned for evidence of the plaintiff subject to payment of Rs. 200/- as costs. The learned counsel for the defendants demanded the costs. Learned counsel for the plaintiff has not made the payment of costs and suffered a separate statement. The suit had been adjourned on the previous date of hearing conditionally, but today the cost was not paid. The amount of costs was not such a big amount which cannot be paid otherwise. Hence, this Court finds no justification to adjourn the case for payment of costs and evidence of the plaintiff. Hence, evidence of the plaintiff stands closed. Heard. The amount of costs was not such a big amount which cannot be paid otherwise. Hence, this Court finds no justification to adjourn the case for payment of costs and evidence of the plaintiff. Hence, evidence of the plaintiff stands closed. Heard. As there is no iota of evidence produced on record by the plaintiff to prove his case, therefore, suit of the plaintiff is dismissed for want of evidence and payment of costs, with no order as to costs. Decree-sheet be drawn. File be completed and consigned to Record Room." 3. Shri Harinder Sharma, learned counsel for the petitioner-plaintiff has argued that no intimation with regard to imposition of costs was given to the petitioner-plaintiff either by the Court or by his counsel appearing in the trial Court. The petitioner-plaintiff himself was not present nor in civil cases the presence of the parties is required. He further submitted that in the impugned order, there is no observation imputing delay to the petitioner- plaintiff which could compel the Court to take the course of closing his evidence and dismissing the suit. According to the learned counsel, the object of Section 35-B of the Code of Civil Procedure (for brevity, `the Code) providing for imposition of costs is to compensate the party whose valuable time has been wasted and to ensure proper regard to the orders passed by the Court. His precise submission is that the object of section 35-B of the Code is not to penalise the petitioner-plaintiff or delinquent party. Therefore, the order dated 1.8.2001 suffers from serious legal infirmity. 4. On the other hand, Shri M.K. Garg, learned counsel for the respondent- defendants argued that provisions of Section 35-B of the Code are mandatory in character and once the costs imposed on a previous date of hearing has not been paid, there is no option left with the Court except to proceed in accordance with the procedure laid down in Section 35-B of the Code which postulates that the payment of costs is a condition precedent for further prosecution of the litigation by the delinquent party. In support of his contention, the learned counsel has relied on a Full Bench judgment of this Court rendered in the case of Anand Parkash v. Bharat Bhushan Rai and others, 1982(1) RCR (Rent) 1 (P&H)(FB) : (1981) 83 P.L.R. 555 (F.B.). In support of his contention, the learned counsel has relied on a Full Bench judgment of this Court rendered in the case of Anand Parkash v. Bharat Bhushan Rai and others, 1982(1) RCR (Rent) 1 (P&H)(FB) : (1981) 83 P.L.R. 555 (F.B.). He further argued that once the petitioner-plaintiff has failed to impart full instructions to his counsel and the counsel pleads no instructions then the blame squarely lies on that party and it cannot be argued by the delinquent party that it was prevented from appearing in Court due to any sufficient cause because there is no provision in the Code for giving a fresh notice to the party which is already represented by a counsel. For this proposition the learned counsel relied on Order 9, Rule 13 of the Code and a Division Bench judgment of this Court in case of Suresh Kumar v. Smt. Daryai and others, (1996-3) 114 P.L.R. 379. 5. Before dilating upon the rival contentions advanced by learned counsel for the parties, it is pertinent to refer to Section 35-B of the Code which reads as under :- 35-B. Costs for causing delay. - (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit - (a) fails to take the step which he was required by or under this Code to take on that date, or (b) obtains an adjournment for taking such step for reproducing evidence or on any other ground, the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of - (a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs. (b) the defence by the defendant, where the defendant was ordered to pay such costs. Explanation. (b) the defence by the defendant, where the defendant was ordered to pay such costs. Explanation. - Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs. (2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons." 6. A perusal of the Section 35-B of the Code makes it obvious that before proceeding further with the suit, the Court must insist on payment of costs which was imposed on the previous date of hearing. It has also been provided that the object of imposition of costs is to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date. The provisions of Section 325-B of the Code of reflect the general policy of the Code to discourage parties to the litigation from causing undue or unnecessary delay in the prosecution of the suit at any of its stages. The Full Bench in the case of Anand Parkash (supra) has held that the provisions of Section 35-B of the Code are mandatory in character and if the delinquent party is able to show that costs were not paid due to the circumstances beyond its control, then the Court would be well within its jurisdiction to exercise power under Section 148 of the Code in favour of defaulting party. The majority view of the Full Bench reads as under :- "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 the 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. The object of enacting Section 35-B appears to be to curb the delaying tactics of the litigating parties, to ensure speedy disposal of the case and to dissuade the unscrupulous litigants from obtaining unnecessary adjournments. A bare reading of the section goes to show that the awarding of the costs to the aggrieved party has been left to the discretion of the Court as is evident by the use of word may in the section, but once that discretion has been exercised and costs have not been paid on the next date of hearing, then regarding the taking of consequential action, the word shall has been used. The Legislature was not satisfied by using the word shall only and this word shall in the section is qualified by the words condition precedent. Its intention has been made absolutely clear by using the words shall be a condition precedent that the provisions of this section are mandatory in nature and that any non-compliance of these provisions would be fatal. The words condition precedent qualifying the word shall appear to be the clincher for interpreting the provisions of section 35-B as mandatory. If an adjournment is sought and the same is granted on payment of costs, then on the next date of hearing the party who sought adjournment is bound to pay the costs. The Court is only required to see whether the costs have been paid or not and if a party does not pay the costs, then the only course open to the Court is to disallow the prosecution of the suit or the defence any further. The Court would not go into the question whether the party who sought adjournment has or has not been guilty of delaying the suit or that it was not useful for the party to lead evidence or that the adjournment sought was unnecessary. When a party seeks adjournment, he pays the costs for his own folly or mistake, which results into inconvenience and unnecessary harassment to the other side. When a party seeks adjournment, he pays the costs for his own folly or mistake, which results into inconvenience and unnecessary harassment to the other side. He does not do so an act of benevolence. Moreover, a litigant is expected to show full respect to the orders of the Court. He cannot be permitted to ignore them or flout them with impunity. In case he opts to disregard the orders of the Court and fails to pay the costs, then he must suffer penal consequences. The duty of paying costs is on the party who has been ordered to pay the costs. The Court or the party who has to receive costs, is not obliged to remind the delinquent party to perform its duty. The Courts are not required to find out as to what was the intention of the party in obtaining adjournment. One of the essential requirements for attracting the applicability of Section 35-B is that the date has to be when a suit is fixed for hearing or for taking any step herein." 7. The question passed (posed ?) in the opening para of this judgment has to be answered in light of the above observations of the Full Bench of this Court. The contention raised by the learned counsel that there was no observation made with regard to delay or that the petitioner-plaintiff himself was not present in Court does not require serious consideration as there is neither any requirement nor any provision pointed out that before adopting the course postulated in Section 35-B of the Code, the Court must record that the delinquent party has been deliberately causing delay in the proceedings or despite the presence of the petitioner-plaintiff in person, he has refused to pay the costs. However, it was open to the petitioner-plaintiff to plead the circumstances which prevented him from paying the costs and take advantage of section 148 of the Code. Under Section 148 of the Code, the Court is competent to enlarge the period fixed by its previous order. However, there was no such case pleaded before the trial Court or before this Court. 8. Learned counsel for the petitioner-plaintiff was at pains to argue that the petitioner-plaintiff would suffer irreparable loss and it would be very harsh if his suit is not permitted to be prosecuted. However, there was no such case pleaded before the trial Court or before this Court. 8. Learned counsel for the petitioner-plaintiff was at pains to argue that the petitioner-plaintiff would suffer irreparable loss and it would be very harsh if his suit is not permitted to be prosecuted. However, he was unable to advance any plausible explanation which may show that the view expressed by the Full Bench in Anand Parkashs case (supra) is not attracted. The Full Bench judgment, to my mind, is binding and has to govern the issue involved. Therefore, there is no escape from the conclusion that the Civil Judge did not act beyond his jurisdiction or committed any material irregularity or illegality which may warrant interference of this Court in its revisional jurisdiction under Section 115 of the Code. 9. In view of the above, the question posed in the opening para of the judgment is answered in affirmative. The revision petition fails and is dismissed.