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East Indian Railway Company Vs. Jit Mal Kallo Mal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All280
AppellantEast Indian Railway Company
RespondentJit Mal Kallo Mal
Excerpt:
.....as already quoted, the order of the 28th of february, 1924 imposed the penalty of the defence being struck off in case the defendant failed to pay the costs of adjournment. this was an order clearly within the competence of the court. this order, in my opinion, was a perfectly competent and proper order. the orders of the learned judge of the small cause court were perfectly clear order. i have already said that the orders passed were perfectly reasonable orders and were within the competence of the court both under the general rules and the provisions of the civil procedure code. the petition in revision has no merits and must fail and it is hereby dismissed with costs......with the ease. but he is unable to pay costs of adjournment.4. after recording this statement the learned judge was of opinion that the defendant had no right to go on with the defense and he, treating the case as an ex parte one, decreed the plaintiff's suit after hearing the evidence. in this court, it is contended that the learned judge of the court below could not; lawfully dismiss the suit and that all that he could do was to make an order of payment of the costs as a part of the costs as a part of the decree.5. the learned counsel for the applicant has based his argument on rule 3, order 17 of the civil procedure code. his argument was that his client was ready to go on with the case and the court was bound to go on with the casa in spite of the fact that its orders had not been.....
Judgment:

Mukerji, J.

1. This revision arises under the following circumstances. The respondent sued the applicant, the E.I. Railway Company, for recovery of certain damages, 28th of February, 1924, was fixed for the hearing of the case. Then the case was adjourned to the 7th May, 1924. In adjourning the case the Court said:

Defendant wants time. Case postponed to 7th of May on payment of Rs. 1 costs. If costs are not paid, defence will be struck off.

2. The ease came up for hearing on the 7th of May and was again adjourned, the Court passing the following order:

I cannot issue commission now. I give 15 days time to produce the witnesses. Defendant to pay Rs. 2 as damages for postponement. If damages be not paid, no evidence of the defendant will be taken.

3. On the 27th of May, 1924 the costs of adjournment not having been paid, the plaintiff's vakil pressed upon the Court the view that the defendant had made a default and his defence was liable to be struck off. The Court, before acceding to this request, asked the defendant's vakil whether he was ready to pay the costs. His statement was taken down in the following language:

Defendant's vakil is present and is ready to proceed with the ease. But he is unable to pay costs of adjournment.

4. After recording this statement the learned Judge was of opinion that the defendant had no right to go on with the defense and he, treating the case as an ex parte one, decreed the plaintiff's suit after hearing the evidence. In this Court, it is contended that the learned Judge of the Court below could not; lawfully dismiss the suit and that all that he could do was to make an order of payment of the costs as a part of the costs as a part of the decree.

5. The learned Counsel for the applicant has based his argument on Rule 3, Order 17 of the Civil Procedure Code. His argument was that his client was ready to go on with the case and the Court was bound to go on with the casa in spite of the fact that its orders had not been obeyed. The learned Counsel for the respondent relies on Rule 4, Order 15 of the Civil Procedure Coda. It enables the Court to proceed at once with the disposal of the Case if it finds that one of the parties had not sufficient reason for not being ready to go on with the case.

6. In my opinion the whole question is one of enforcement of the order of the court and relates to the) method of enforcement. The general rules of 1911 prepared by the High Court for the guidance of the Courts below have the force of law and Chapter 3, Rule 26 lays down the procedure to be adopted by Courts. It says:

In no case, when one of the parties is ready to proceed, should an adjournment be granted at the request of the opposite party, except on conditions that a sum commensurate with the costs which, in the opinion of the Court, the party ready to proceed will have to incur, owing to the adjournment, be paid as and when directed by the Court to the party ready to proceed, and be his costs in any event.

7. This rule really reproduces in a different language the provision contained in Order 17, Rule 1 of the Civil Procedure Code. There, it is said that the Court may make such order as it thinks fit with respect to the costs occasioned by the adjournment. In this casa, as already quoted, the order of the 28th of February, 1924 imposed the penalty of the defence being struck off in case the defendant failed to pay the costs of adjournment. This was an order clearly within the competence of the Court. The term laid down was not at all oppressive or improper. If the defendant had on the 28fch of February, 1924, intimated to the Court that he was not going to pay the coats of adjournment, the Court would have bean justified in proceeding with the hearing of the casa at once, Similar remarks would apply to the order passed on the 7th of May, 1924. The Judge adjourned the case on condition of the payment of Rs. 2 as damages and said that in case the damages were not paid the defendant would not be entitled to adduce his evidence. This order, in my opinion, was a perfectly competent and proper order.

8. Now the question is whether the Judge was entitled to enforce his orders by refusing to take the defendants's evidence and by striking off the defence or whether ha was bound to allow his orders to be disobeyed and all that he could do was to make the costs of adjournment a part of the costs in the cause. In the casa of Veerabhadrappa Chetty v. Chinnamma (1898) 21 Mad. 403 the learned Judges were of opinion that unless payment of costs is made a condition precedent to adjournment it is not open to the Court to strike off the defence and proceed ex parte. I need not express my opinion as to the correctness or otherwise of this case. But the present case does certainly come within the purview of even this ruling which takes a very lenient view. The orders of the learned Judge of the Small Cause Court were perfectly clear order. They imposed certain penalties on the defendants and the learned Judge has simply enforced those penalties. I have already said that the orders passed were perfectly reasonable orders and were within the competence of the Court both under the general rules and the provisions of the Civil Procedure Code. Further, Section 151 of the Civil Procedure Code would also justify the Court in acting in the way in which it did act. To have allowed the defendant to flout the orders of the Court would certainly have been an abuse of the process of the Court and would certainly not have been consistent with the ends of justice. I am prepared, therefore to hold that no other rule applied. Section 151 would enable the Court to exercise its inherent power by enforcing its reasonable orders. The petition in revision has no merits and must fail and it is hereby dismissed with costs.


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