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2002 DIGILAW 749 (PNJ)

Rita Bedi v. Jagmohan Singh

2002-08-02

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is directed against the order dated 27.8.2001 passed by the Civil Judge (Junior Division), Chandigarh, declining the prayer of the plaintiff-petitioner seeking permission to permit her to place on record the amended plaint which was allowed to be amended on 18.8.2000 subject to payment of Rs. 200/-. The principal ground for refusing permission to place on record the amended plaint mentioned by the Civil Judge is that the plaintiff-petitioner failed to pay the costs of Rs. 200/- on the adjourned date i.e., 30.8.2000 despite the fact that the cost was demanded by the defendant-respondent. 2. Brief facts of this case which led to the filing of the present revision petition are that the plaintiff-petitioner filed Civil Suit No. 240 of 13.9.99 for declaration to the effect that the plaintiff and the defendant are in exclusive use and occupation of half share of House No. 640, Sector 16-B, Chandigarh. The basis of the claim is that both of them have succeeded in equal shares on the death of their father as per family settlement have also been specified in the family settlement dated 24.5.1994. The plaintiff-petitioner has also asked for the account of the rental income of specified portion of the building as the same has been used by the defendant-respondent exclusively. A further prayer for mandatory perpetual injunction restraining the defendant-respondent from interfering in the use and occupation by the plaintiff-petitioner. That the area of accommodation which has fallen to her share according to the terms of partition/family settlement dated 24.5.1994 because the terms of family settlement has been acted upon. During the pendency of the suit and before framing of issues an application under Order 6, Rule 17 of the Code was filed by the plaintiff-petitioner seeking amendment of the plaint. On 18.8.2000 the application of the plaintiff-petitioner for amendment was allowed subject to payment of Rs. 200/- and the case was adjourned to 30.8.2000. On 30.8.2000, the learned Civil Judge passed the following order :- "Present : As before. Costs not paid, even on demand. At the request case is adjourned to 28.9.2000 for consideration on the stay application. Amended reply and written statement has been filed." 3. 200/- and the case was adjourned to 30.8.2000. On 30.8.2000, the learned Civil Judge passed the following order :- "Present : As before. Costs not paid, even on demand. At the request case is adjourned to 28.9.2000 for consideration on the stay application. Amended reply and written statement has been filed." 3. The case was taken up on 28.9.2000 when the learned counsel for the plaintiff-petitioner offered to make the payment of costs of Rs. 200/- and the order dated 28.9.200 reads as under :- "Present :- Sh. Kasturi Lal, Adv. counsel for the petitioner. Sh. K.S. Ahluwalia, for respondents. Written statement to the original petition filed today. Reply to the application U/O 39, Rule 1 and 2 Civil Procedure Code. had already been filed. At this learned counsel for the petitioner has offered the payment of costs for filing amended petition but the same has not been accepted by counsel for the respondent. Both the counsels want time to address arguments on the point whether amended petition subject to cost on the next date of hearing can be allowed or not and case is adjourned to 17.10.2000." 4. On 17.10.2000 and therafter, the case seems to have been adjourned on various dates and on 27.8.2001, the impugned order has been passed declining the request of the plaintiff-petitioner for placing on record the amended plaint on the ground that cost of Rs. 200/- was never paid. The operative part of the order reads as under :- "Perusal of the order dated 18.8.2000 shows that the amendment of pliant was allowed subject to payment of costs Rs. 200/- and the case was adjourned to 30.8.2000. On 30.8.2000, the cost was demanded by the counsel for the defendant but it was not paid in spite of asking, as such case was adjourned after taking on file the written statement to the amended plaint. Although written statement to the amended plaint has been placed on record, however, simply by placing on record the documents, the same does not become admissible. There is a specific order dated 18.8.2000 that the amendment is allowed subject to payment of costs but the costs have never been paid by the plaintiff. The order allowing the amendment of the plaint was subject to payment of costs/condition. There is a specific order dated 18.8.2000 that the amendment is allowed subject to payment of costs but the costs have never been paid by the plaintiff. The order allowing the amendment of the plaint was subject to payment of costs/condition. The condition has not yet been fulfilled by the plaintiff as such in failure of fulfilment of the condition, the conditional order itself becomes infructuous, as such, in view of these facts amended plaint and the written statement filed to the amended plaint cannot be taken into consideration. Now the case is adjourned to 13.11.2000 for filing of replication and consideration on issues." 5. I have heard Shri R.L. Sharma, learned counsel for the plaintiff-petitioner and Shri Ashok Aggarwal, learned counsel for the defendant-respondent. 6. Shri R.L. Sharma, has argued that after the case was adjourned on 30.8.2000 the date when costs was supposed to be paid the default in payment of costs would not constitute a legal basis for declining the prayer for placing on record the amended plaint on record in pursuance of order dated 18.8.2000. He has further submitted that when the case came up for hearing on 27.8.2001, the plaintiff-petitioner had offered to pay the cost which was declined and was not accepted by the defendant-respondent. Therefore, no adverse effect could be inferred on account of default in making the payment of cost. 7. On the other hand, Shri Ashok Aggarwal, learned counsel for the defendant-respondent has argued that once the plaintiff-petitioner fails to pay the cost on the next date of hearing i.e., 30.8.2000, he had lost the right to avail the benefit accruing from the order dated 18.8.200 because the order dated 18.8.2000 was a conditional order and unless the condition with regard to payment of cost was fulfilled, the benefit of amendment given by that order would not be available to the plaintiff-petitioner. In support of his submissions, the learned counsel has placed reliance on two judgments of this Court in the cases of Santro v. Rajwanti, (1994-1) 107 PLR 28 and Mohinder Singh v. Rameshwar Kumar Singla, (1994-2) 107 PLR 696. 8. In support of his submissions, the learned counsel has placed reliance on two judgments of this Court in the cases of Santro v. Rajwanti, (1994-1) 107 PLR 28 and Mohinder Singh v. Rameshwar Kumar Singla, (1994-2) 107 PLR 696. 8. I have thoughtfully considered the rival submissions made by the learned counsel for the parties and am of the view that once the date for payment of cost i.e., 30.8.200 is reached and on that date the case having been adjourned to 28.9.2000 albeit for the purpose for addressing arguments on the question of effect to such non-payment then the same having not been argued till the date of passing the impugned order i.e., 27.8.2001 then Section 35-B of the Act would not continue to apply with its rigour. A Full Bench of this Court in the case of Shri Anand Parkash v. Shri Bharat Bhushan Rai, 1981(83) PLR 555, took the view that on the date next following the date of order was passed the cost must be paid. It was further held that if the cost is not paid then it is mandatory on the courts to disallow the prosecution of the case or allow the defendant to proceed with its defence as the case may be. However, the Full Bench did not deal with the consequences where the cost is not paid despite and yet the court has not passed any order to allow prosecution of the suit. In another Full Bench namely, Prem Sagar v. Phul Chand, 1983(85) PLR 797, it has been held that if on the next following date the order of payment of cost, if the issue is not raised by either the parties or it has not been taken notice by the court then it cannot be resurrected on subsequent dates. It also reiterated the proposition of law laid down in Anand Parkashs case (supra) namely that if the cost is paid on the next following date and the issue having expressly raised then thereafter the defaulting party no longer be permitted to prosecute its case. 9. In the present case, on 28.9.2000, the written statement to the original petition was allowed to be filed even reply to the application under Order 39, Rules 1 and 2 was also permitted to be filed. 9. In the present case, on 28.9.2000, the written statement to the original petition was allowed to be filed even reply to the application under Order 39, Rules 1 and 2 was also permitted to be filed. The suit has been adjourned repeatedly for consideration of compromise between the parties and eventually the order dated 27.8.2001 has been passed. In these facts and circumstances, it cannot be held that the rigour of Section 35-B would keep on applying the plaintiff-petitioner and her amendment would be barred. Once the court has adjourned the case further for one purpose or the other, for a period of one year, then it would be inequitable to refuse the prayer for placing on record the amended plaint of the plaintiff-petitioner. Therefore, the revision petition is liable to be accepted. 10. For the reasons recorded above, this revision petition succeeds and the order dated 27.8.2001 is set aside. The plaintiff-petitioner is permitted to take the benefit of the order dated 18.8.2000 allowing her to amend the plaint. However, the same shall be subject to payment of Rs. 3,000/- as costs. Petition allowed.