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Thambuswamy Vs. Special Land Acquisition Officer, Bangalore - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1774 of 1982
Judge
Reported inAIR1983Kant203; 1982(2)KarLJ553
ActsCode of Civil Procedure (CPC), 1908 - Sections 35-B
AppellantThambuswamy
RespondentSpecial Land Acquisition Officer, Bangalore
Appellant AdvocateR. Narayanappa and ;S. Shankarnarayan, Advs.
Respondent AdvocateC.S. Kotawale, Govt. Pleader
Excerpt:
.....the said period to avail the privilege leave - hence, no leave is accrued to his account right from 10.12.1985 till 9.8.1987 -therefore, the claim of the petitioners towards leave encashment benefit is not acceptable. - to hold otherwise and read into the section, the view taken by the learned city civil judge while refusing to grant further adjournment at the request of the 1st claimant under the impugned order, would lead to far-reaching consequences and result in failure of justice. necessarily it follows that the learned city civil judge has failed to exercise the jurisdiction legally vested in him......the source of this revision petition is an order dated 17-10-1981 made by the xiii additional city civil judge, bangalore in l. a. c. no. 886/1981 on his file rejecting a reference made under section 18 of the land acquisition act by the special land acquisition officer b. d. a., bangalore. the revision petitioner is the first claimant in the above land acquisition case. in all there are five claimants including the revision petitioner. among them, claimants 4 and 5 were placed ex parte. they appeared to have filed an application for setting the order placing them ex parte aside. that application came to be allowed on 14-9-1981. however, the case could not be proceeded with since all the claimants were absent. the learned city civil judge adjourned the case on payment of cost of rs. 50/-.....
Judgment:
ORDER

1. This revision petition is listed for admission for this day. With the consent of the learned counsel appearing for both the parties, the revision petition is deemed to have been set down for final hearing and the revision petition is heard on merits.

2. The source of this revision petition is an order dated 17-10-1981 made by the XIII Additional City Civil Judge, Bangalore in L. A. C. No. 886/1981 on his file rejecting a reference made under Section 18 of the Land Acquisition Act by the Special Land Acquisition Officer B. D. A., Bangalore. The revision petitioner is the first claimant in the above land acquisition case. In all there are five claimants including the revision petitioner. Among them, claimants 4 and 5 were placed ex parte. They appeared to have filed an application for setting the order placing them ex parte aside. That application came to be allowed on 14-9-1981. However, the case could not be proceeded with since all the claimants were absent. The learned City Civil Judge adjourned the case on payment of cost of Rs. 50/- and posted for payment of costs and evidence on 17-10-1981. On 17-10-1981 it was reported on behalf of the Government Pleader appearing for the respondent, that the cost ordered to be paid by the claimants was received. However the case could not be taken up for evidence. The 1st claimant alone was present. He sought for further time. His request for time was rejected on the ground that the case was adjourned on the previous occasion on payment of cost and no further adjournment could be granted for evidence in view of S. 35-B, C. P. C. and also in view of the Full Bench decision of the Punjab and Haryana High Court in Anand Prakash v. Bharat Bhushan . Having rejected the prayer for adjournment of the case for evidence, the learned Judge proceeding further, rejected the reference for want of evidence since no evidence was adduced by the claimants respecting their claim for enhancement of the compensation. It is that order that is sought to be challenged in this revision petition.

3. Section 35-B , C. P. C. so far material reads thus :

'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 or for producing evidence or on any other ground,

the Court may, for reasons to be recorded, made 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 not 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 ............ ...........'

4. The material portion of S. 35-B, Civil P. C. excerpted above would disclose that on any date fixed for the hearing of a suit or for taking any step there in, a party to the suits fails to take the step which he was required by or under the Code of Civil Procedure to take on that date or obtains an adjournments for taking such step or for producing evidence or on any other ground, the Court may make an order requiring such party to pay such costs to the other party as would in its opinion be reasonably sufficient to reimburse the other party respecting the expenses incurred by him in attending the Court on that date and payment of such costs to the other party on the date next following the date of such order shall be a condition precedent to the further prosecution of the suit by the plaintiff where the plaintiff was ordered to pay such costs or the defence by the defendant where the defendant was ordered to pay such costs. It seems obvious to me that the costs are ordered to be paid by the defaulting party to the non-defaulting party to compensate the latter, respecting the expenses incurred by him in attending the Court on that day for no fault of his. If the party against whom cost is awarded fails to make the payment of such cost to the other party on the date next following the date of such order, then he shall be prevented from prosecuting the suit if the defaulting party is the plaintiff or the defence if the defaulting party is the defendant.

5. The learned City Civil Judge sought cover under S. 35-B, C. P. C. for rejecting the adjournment sought for by the 1st claimant on 17-10-1981, notwithstanding payment of costs as ordered on the previous date of hearing of the case, on the ground that since the case was adjourned once on payment of cost, no further adjournment could be granted for evidence, as S. 35-B. C. P. C. enjoins the Courts not to grant further adjournment in such situation. The question for consideration will be whether Section 35-B calls for such a construction to be placed upon its terms.

6. I am unable to read any terms in Section 35-B to hold that if the Court once exercised its discretion in favour of a party to grant an adjournment on payment of cost for taking any step which he was required by or under the Civil P. C. to take on that date or for producing evidence on any other ground, the Court is prevented from or injuncted against granting of further adjournment at the instance of such party, although such party makes the payment of cost as ordered, on the date next following the date of making such order. All that S. 35-B provides for is that on the date fixed for the hearing of the suit or for taking any step therein, if a party fails to take the step which he was required by or under the Civil P. C. to take on that date or obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may award costs against such party while granting adjournment so as to compensate on non-defaulting party, 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 the case for the defence, as the case may be, depending upon the party against whom cost was awarded. The language of Section 35-B neither suggests explicitly nor by way of implication, a command to the Court, that the Court shall not grant further adjournment at the request of such party in whose favour it has once exercised its discretion to grant adjournment on payment of costs, notwithstanding the facts that he had complied with the order of payment of costs in terms of the said section. To hold otherwise and read into the section, the view taken by the learned City Civil Judge while refusing to grant further adjournment at the request of the 1st claimant under the impugned order, would lead to far-reaching consequences and result in failure of justice. The learned City Civil Judge, in my view, has wholly misconstrued the true scope and ambit of Section 35-B, C. P. C.

7. Now turning to Anand Prakash's case, (FB) on which also reliance was placed by the learned City Civil Judge while rejecting the 1st claimant's prayer for adjournment, the question that came up for consideration before the Full Bench of the Punjab and Haryana High Court was whether the provisions of S. 35-B, C. P. C. are mandatory and what consequences would ensue in the event of a party failing to pay the costs as ordered by the Court, on the date next following the date of such order. The question whether the Court could grant further adjournment of the case at the request of the party who, once obtained an adjournment on payment of costs under Section 35-B, even if the order of payment of cost had been complied with by such party in terms thereof, did not arise for consideration in the said decision, nor do I find any observation of the Court on that question. That being the case, the decision in Anand Prakash's case (FB) does not lend support to the view taken by the learned City Civil Judge in refusing to grant further adjournment at the request of the 1st claimant.

8. Thus it is obvious that neither S. 35-B, C. P. C. not the decision in Anand Prakash's case (FB) would support the view taken by the learned City Civil Judge in refusing to grant further adjournment of the case sought by the 1st claimant. If the learned City Civil Judge had refused the adjournment on some other reasonable and justifiable grounds, other than the one advanced in the impugned order, it would have been altogether a different matter. Obviously the ground on which the adjournment was refused, is legally unsustainable. Necessarily it follows that the learned City Civil Judge has failed to exercise the jurisdiction legally vested in him. Consequently, I am left with no other alternative but to pronounce that the impugned order, rejecting the reference under Section 18 of the Land Acquisition Act, flowing out of the improper refusal to grant adjournment to lead evidence, is wholly erroneous and illegal, liable to be set aside.

9. In the result, for the reasons stated above, the revision petition is allowed, the impugned order is overturned and the learned City Civil Judge is directed to restore the reference (L. A. C. No. 886/1980) to his file and proceed with it in accordance with law after giving opportunity to the parties to adduce evidence and also to being heard. No costs.

10. The Government Advocate is granted four weeks' time to file his memo of appearance.

11. Petition allowed.


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