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2017 DIGILAW 579 (ALL)

RAKESH KUMAR AGARWAL v. PUNJAB KHAD BHANDAR

2017-02-17

PANKAJ MITHAL

body2017
JUDGMENT : Pankaj Mithal, J. Heard Sri Rishi Chadha, learned counsel for the defendant revisionists. Sri Vikram Rai holding brief of Sri Anoop Trivedi, learned counsel appears for respondents no. 1, 2 and 3. Respondents no. 3 and 4 are proforma parties. 2. The revision has been preferred against the order dated 1.11.2013 passed by the court of first instance by which the application of the plaintiff respondents no. 1 and 2 filed under Order 9, Rule 9 CPC has been allowed and the suit which was dismissed in default has been restored to its original number. 3. The submission of Sri Rishi Chadha, learned counsel for the defendant revisionists is that as the plaintiff respondents have not paid the cost imposed upon them on the previous dates, they are not entitle to the restoration of the suit. Their conduct all through had been to prolong the litigation. Secondly, they have failed to show sufficient cause for their absence which may entitle them to get the suit restored. 4. The suit filed by the plaintiff respondents was dismissed in default on 24.11.2010. The plaintiff respondents no. 1 and 2 applied for recall of the said order and for restoring the suit to its original number on the ground that on the said date one of them Rakesh Kumar had fallen seriously ill and was unable to attend the Court. The counsel was under the impression that the client will call him when the matter would be taken up. The above cause shown was found to be sufficient enough to recall the order and to restore the suit. The court observing that the matter deserves to be considered on merits restored the suit. 5. The defendant revisionists are not disputing the factum of the illness of Rakesh Kumar on the said date but contends that Aidal Singh was doing the pairvi of the case and therefore illness of Rakesh Kumar is not sufficient for restoring the suit. 6. The Aidal Singh respondent no. 4 is one of the defendants in the suit along with the revisionist. He may be the father of plaintiff respondent no. 2 but he is not a fit and a suitable person to do the paravi on behalf of the plaintiff respondents. 7. In view of the above, it is difficult to accept that respondent no. 4 was the person doing the pairvi in the case. He may be the father of plaintiff respondent no. 2 but he is not a fit and a suitable person to do the paravi on behalf of the plaintiff respondents. 7. In view of the above, it is difficult to accept that respondent no. 4 was the person doing the pairvi in the case. The illness of plaintiff respondent no. 2 is sufficient to prevent him to attend the proceedings. 8. The past conduct may be a relevant factor along with the cause of absence for considering the application under 9 Rule 9 CPC but non payment of cost would not debar the party from moving the restoration application or its consideration on merits. 9. The application moved under Order 9, Rule 9 CPC is required to be considered in terms of what has been contained in the said provision i.e., if the parties able to satisfy the Court that there was sufficient cause for his non appearance at the time the suit was called for hearing. Therefore, no other factor except sufficient cause for non appearance is relevant for its consideration. However, at times in considering the application under Order 9, Rule 9 CPC the previous conduct may becomes relevant to throw light on the genuineness of the cause shown for non appearance but payment of cost imposed in the past is not material. 10. According to 35 B CPC where cost is imposed for causing delay, payment of cost becomes a condition precedent to further prosecution of the suit but it does not permit dismissal of the suit for non payment of cost. This is what has been held in Manohar Singh v. D.S. Sharma 2009 AIR SCW 7065. 11. The aforesaid authority categorically lays down that Section 5 B CPC does not come in way of the Court to extend the time for its payment in exercise of its general power under Section 148 CPC or as a matter of fact under Section 151 CPC. 12. To illustrate, if the cost is imposed for not cross examining the witness, non payment of cost would permit the Court to close the evidence but it would not debar the disposal of the suit on merits on the basis of the material available on record. Similarly, non payment of cost imposed earlier for the purposes of seeking adjournment would not debar consideration of the application for restoration. 13. Similarly, non payment of cost imposed earlier for the purposes of seeking adjournment would not debar consideration of the application for restoration. 13. In such a situation, if the court below has exercised the discretion in one way in favour of the plaintiff respondents no. 1 and 2 and has restored the suit, no illegality which may warrant interference by this Court in exercise of revisional jurisdiction is made out. 14. The court will proceed and decide the suit in accordance with law by curtailing all unnecessary adjournments by fixing short date. In case any adjournment becomes necessary, it shall not be allowed otherwise than by imposing cost of Rs. 1,500/- per adjournment upon either of the parties seek adjournment. 15. The revision lacks merit and is dismissed.