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2014 DIGILAW 744 (DEL)

Jaconde Overseas v. Hallax Applied Power

2014-03-04

V.K.SHALI

body2014
JUDGMENT V.K. Shali, J. (Oral) OA No.69/2013 1. This is a chamber appeal against the order dated 05.03.2013 passed by the learned Joint Registrar under Rule 4 Chapter II of the Delhi High Court (Original Side) Rules, 1967. Briefly stated, the facts of the case are that this is a suit for recovery of damages of Rs.49,93,887/-on account of forcible eviction of the appellant/plaintiff from the suit property by the defendants. 2. It is stated in the appeal that after framing of issues on 25.11.2008, the plaintiff was given time of six weeks for the purpose of filing evidence by way of affidavit. However, the said evidence was not filed and a cost of Rs.3,000/-was imposed on the plaintiff on 22.05.2009 which was to be deposited with the Delhi High Court Legal Services Committee which was not deposited by the plaintiff and on the next date of hearing i.e.17.11.2009, two additional sets of cost of Rs.5,000/- & Rs.500/- were imposed to be deposited with the Delhi High Court Legal Services Committee. The plaintiff also did not bring on record the original receipts regarding deposit of cost on 07.04.2010, 07.05.2010 and 15.09.2010 as a consequence of which, further cost of Rs.10,000/- was imposed on 12.07.2011 to be deposited with Delhi High Court Legal Services Committee. The evidence of one witness by way of affidavit was filed by the plaintiff but even the said witness was not made available for the purpose of cross examination. On 13.09.2012, again on the request of the plaintiff, one last and final opportunity was granted to the plaintiff to conclude the evidence subject to payment of cost of Rs.20,000/- to the defendants. On 05.03.2013, the cost of Rs.20,000/- by way of four cheques was offered to the learned counsel for the defendants, however, he refused to accept the same as it was stated by him that the plaintiff had not cleared the cost imposed on him on the previous dates. The plaintiff/appellant was not able to show to the court that all the earlier costs had been deposited or paid except showing a receipt dated 11.08.2011 with respect to the cost imposed on 12.07.2011. Consequently, the learned Joint Registrar closed the evidence of the plaintiff. 3. I have heard the learned counsel for the appellant/plaintiff as well as the learned counsel for the defendants. 4. Consequently, the learned Joint Registrar closed the evidence of the plaintiff. 3. I have heard the learned counsel for the appellant/plaintiff as well as the learned counsel for the defendants. 4. The learned counsel for the appellant/plaintiff has contended that so far as the payment of the cost of Rs.3,000/-imposed on 22.05.2009 and two sets of cost of Rs.5,000/- & Rs.500/- imposed on 17.11.2009 are concerned, that were deposited by the plaintiff with the Delhi High Court Legal Services Committee on 07.05.2010 and the original receipts were also filed on the said date and the same was on judicial record at the time when the impugned order was passed. However, because of the inadvertent mistake of the counsel, it could not be pointed out to the court. So far as the cost of Rs.10,000/- is concerned, which was imposed on 12.07.2011, that was also deposited by the plaintiff with the Delhi High Court Legal Services Committee on 11.08.2011 as also the cost of Rs.20,000/- imposed vide order dated 12.03.2012, but this fact also could not be brought to the notice of the court as the counsel was ignorant about the receipt having already been filed. 5. It was submitted by the learned counsel for the appellant/plaintiff that the order of closure of plaintiff’s evidence by the learned Joint Registrar on 05.03.2013 was not sustainable in the eyes of law and in any case it was too harsh because the plaintiff was even prepared to pay the cost imposed on 13.09.2012 by way of four cheques. 6. The learned counsel for the defendants has contended that the payment of cost under Section 35B of the CPC is a precondition for permitting a party to participate in the proceedings. In this regard, it has been contended by him that the learned Joint Registrar has rightly placed reliance on Manohar Singh v. D.S.Sharma & Anr. (2010) 1 SCC 53 wherein hit has been observed that in case cost under Section 35B CPC is not deposited by the defaulting party, such defaulting party can be prohibited from any further participation in the suit. The learned counsel for the defendants has also placed reliance on Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and Ors.; (2012) 1 SCC 455 . 7. The learned counsel for the defendants has also placed reliance on Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and Ors.; (2012) 1 SCC 455 . 7. I have given my careful consideration to the submissions made by the learned counsel for the parties and also gone through the judgments relied upon by the learned counsel for the defendants. The judgment of the Apex Court in Manohar Singh’s case clearly lays down that a party who defaults in payment of cost, his defence could be struck off or he may be precluded from prosecuting his case. So far as the instant case is concerned, the facts are that admittedly appellant/plaintiff was not in default with regard to the clearance of the previous costs. The only thing was that the costs were deposited with the Delhi High Court Legal Services Committee, and even the original receipts were filed, but the learned counsel appearing for the appellant/plaintiff was not aware and could not point out to the court that cost imposed on 22.05.2009, 17.11.2009, 12.07.2011 & 12.03.2012 stood already paid and the original receipts in that regard were on record. The cost imposed on 17.11.2009 of Rs.8,500/- had been paid vide Receipt No.4222 on 07.05.2010, the cost imposed on 12.07.2011 of Rs.10,000/- had been paid vide Receipt No.5694 on 11.08.2011 and the cost imposed on 12.03.2012 had been paid vide Receipt No.8667 on 04.09.2012. Thus, all the costs except the cost imposed on 13.09.2012 had been cleared well before the date of 05.03.2013 when the impugned order was passed closing the evidence of the plaintiff/appellant. On the date when the evidence of the plaintiff/appellant was closed, admittedly the affidavits of three witnesses of the plaintiff/appellant were on record. In such a circumstance, when the affidavits of three witnesses filed by the plaintiff were already on record and the plaintiff was prepared to the cost imposed on 13.09.2012 on account of adjournment having been obtained by him, the learned Joint Registrar ought to have directed the defendants to accept the cost and proceed ahead with the trial. But instead of doing so, the learned Joint Registrar seems to have been swayed by the submissions made by the learned counsel for the defendants that the plaintiff has not deposited the cost and because of the said default, the evidence of the plaintiff/appellant was closed. But instead of doing so, the learned Joint Registrar seems to have been swayed by the submissions made by the learned counsel for the defendants that the plaintiff has not deposited the cost and because of the said default, the evidence of the plaintiff/appellant was closed. I am of the view that the order passed by the learned Joint Registrar was too harsh qua the plaintiff/appellant who had admittedly filed affidavits by way of evidence of three witnesses though he had been lax in prosecuting the matter. Under such circumstances, I feel that the order passed by the learned Joint Registrar vide order dated 05.03.2013 deserves to be set aside and the appeal of the plaintiff/appellant deserves to be allowed and the plaintiff be given one opportunity to make the witnesses available whose affidavits are already on record for the purpose of cross-examination after permitting them to tender their affidavits which are on record by way of evidence. Ordered accordingly. 8. The matter be listed before the Joint Registrar on 02.04.2014 for the purpose of fixing a date so that the cross examination of the witnesses could be completed after giving an opportunity to the witnesses to tender their affidavits and permitting the cross-examination of the witnesses. It is made clear that only one opportunity be given to the plaintiff to produce the witnesses for the purpose of cross-examination.