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Assa Nand Vs. Harish Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 968 of 1982
Judge
Reported inAIR1983P& H23
ActsCode of Civil Procedure (CPC), 1908 - Sections 35-B and 115(2) - Order 20, Rule 6-A - Order 37, Rule 2(2); Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 115
AppellantAssa Nand
RespondentHarish Kumar and ors.
Cases Referred and Shri Krishan Bhardwai v. Manohar Lal Gupta
Excerpt:
.....by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - xxxvii was held to be of far-reaching consequence which would clearly fall within the ambit of the phrase 'any case which has been decided' for a far as the defendant was concerned, the controversy had really come to an end. in view of the same, the order passed by the trial court on the application filed by the defendants, is an order made in the course..........a s stated earlier, that on the next date when the costs are to be paid, necessary order, if any, under section 35b of the cod e, should be passed by the trial court.7. as a result of the above discussion, this revision petition succeeds and is allowed. the impugned order is set aside with costs. costs assessed at rs. 200/- . the parties through their counsel, have been directed to appear in the trial court on the 10th august, 1982. the trial court will further proceed with the suit in accordance with law. the records of the case be sent back forthwith.8. petition allowed.
Judgment:
ORDER

1. This revision petition is directed against the order of the trail Court dated Mar. 24, 1982, whereby it accepted the application filed on behalf of the defendants-respondents for the dismissal of the suit on the ground of non-payment of costs for adjournment. Consequently, the suit of the plaintiff was dismissed.

2. The petitioner filed a suit for a declaration and permanent injunction against the defendants-respondents in the year 1979. On Feb. 6, 1981, no evidence of the plaintiff was present and an adjournment was requested which was allowed subject to the payment of costs of Rs. 30/- . The case was to come up thereafter for plaintiff's evidence on Mr. 26, 1981. The order of the trial Court dated March 26, 1981, reads,--

'Present : Shri S. K. Sehgal, Advocate,

counsel for the plaintiff:

Shri Hari Kishan, defendant,

(in person).

No evidence of the plaintiff is present. Summons received back unserved. A date is requested. Not opposed. To come up for defendant evidence on 16-5-1981 on P. F. As requested one set of summons be given dasti.' The case remained pending and various dates were fixed from time to time. It was on Mar. 6, 1982, i. e. after about a year, that the respondents moved the application for the dismissal of the suit on the ground of non-payment of the costs on Mar. 26, 1981.

3. Notice of this application was given to the plaintiff, who filed his reply thereto on Mar. 9, 1982. It was pleaded therein that the costs imposed on him On Feb. 6, 1981, had been paid to the defendants' counsel on Mar. 26, 1981, but due to inadvertence. it was not mentioned in the interim order dated Mar. 26, 1981 that the costs had been paid to the defendants' counsel. It has also been further stated that had the costs of Rs. 30/- imposed on him on Feb. 6, 1981, not been paid to the defendants' counsel on Mr. 26, 1981, the defendants would not have allowed him to lead evidence and would have brought to the notice of the Court the non-payment of the costs. It is also relevant to note that meanwhile, the defendants' said counsel had died. The trial Court after hearing the learned counsel for the parties, came to the conclusion that the costs for the adjournment had not been paid because had it been paid, it would have been mentioned in the order dated Mar. 26, 1981. Thus, in view of the provisions of Section 35B of the Civil P. C. (hereinafter called the Code), and the decision of this Court in Anand Parkash v. Bharat Bhushan Rai, AIR 1981 Punj and Har 269(FB), the application filed on behalf of the defendants was accepted. As a result. the suit of the plaintiff was dismissed. The concluding paragraph of the order, under revision reads,--

'Since the costs of adjournment have not been paid and keeping in view Section 35B of the Civil P. C. read with Full Bench authority of our own Hon'ble High Court, the appellation of the defendants is liable to be accepted and, therefore, the suit of the plaintiff is liable to be dismissed. T, therefore, accept the application of the defendants. Consequently, the suit of the plaintiff is also dismissed. However, in view of the peculiar circumstances of the case, parties are left to bear their own costs. File be consigned to the record room.'

Aggrieved against the same, the plaintiff has come up in revision to this Court.

4. A preliminary objection has been raised on behalf of the respondents that the revision petition is not maintainable because the impugned order was an appealable one and as such. in view of sub-section (2) to Section 115 of the Code, this Court shall not vary or verse any decree or order, against which an appeal lies either to this Court or to any other Court subordinate thereto, in the exercise of the revisional jurisdiction. According to the learned counsel, the impugned order of the trial Court amounts to a decree in view of the provisions of O. XX, R. 6-A of the Code and hence the only remedy of the plaintiff was to file an appeal against the said order of the trial Court. In support of this contention, the learned counsel placed reliance on Atma Ram v. Punjab Financial Corporation. (1968) 70 Pun LR 167. On the other hand, the learned counsel for the petitioner, contended that the impugned order is a composite one as it disposed of the application filed on behalf of the defendants as a consequence of which the plaintiff's suit was dismissed. The present revision petition has been filed against the order of the trial Court accepting the application filed on behalf of the defendants for dismissal of the plaintiff's suit and, therefore, the provisions of sub-section(2) of Section 115 of the Code are not attracted to this case. In support of this contention, the learned counsel relied upon S. S. Khanna v. F. J. Dhillon, AAIR 1964 SC 497 and Shri Krishan Bhardwai v. Manohar Lal Gupta, AIR 1977 Delhi 226.

5. After hearing the learned counsel for the parties on the preliminary objection, I am of the considered opinion that there is no force in the said objection. In somewhat similar circumstances, it has been held by the Delhi High Court in Siri Krishnan Bhardwai's case (supra) that if the impugned order is one which falls within the ambit of the phrase 'any case which has been decided', it would be revisable. An order under Order XXXVII, Rule 2(2)(in that case) refusing to grant leave to defendant to appear an d defend suit under O. XXXVII was held to be of far-reaching consequence which would clearly fall within the ambit of the phrase 'any case which has been decided' for a far as the defendant was concerned, the controversy had really come to an end. Irrespective of the decree that has been passed, a revision against such an order was held to be competent. Moreover, the Explanation added to Section 115 of the Code vide Civil P. C. (Amendment) Act, 1976(104 of 1976), provides that the expression, 'any case which has been decided ' will include any order made, in the course of a suit or other proceeding. In view of the same, the order passed by the trial Court on the application filed by the defendants, is an order made in the course of the suit and, therefore, clearly falls within the expression 'any case which has been decided'. In such a situation, it becomes immaterial that as a consequence thereof, the plaintiff's suit itself has been dismissed by the trial Court by the impugned order.

6. Now coming to the merits of the revision petition, it is strange that the application on account of the alleged non-payment of costs of Rs. 30/- imposed on the plaintiff on Feb. 6, 1981, was filed after about a year, i. e. on March 6, 1982. The application filed after such a long time by itself deserved dismissal. The mere fact that the payment of costs was not recorded in the interim order dated March 26, 1981, was itself not sufficient to come to the conclusion that the costs had not been paid by the plaintiff to the defendants. Admittedly, the defendants' counsel, to whom the costs were alleged to have been paid, was no more alive. Taking into consideration all the facts and circumstances of this case, I am of the considered opinion that the provisions of Section 35B of the Code, were not at all attracted. Section 35B of the Code inter alia provides that if on any date fixed the case is adjourned on payment of costs, the payment of such costs shall be a condition precedent to the further prosecution of the suit by the plaintiff where the plaintiff was ordered to pay such costs. Thus, it will be reasonable to conclude that in a case where the costs imposed are not paid, on that very date when the costs are to be paid, the attention of the Court should be drawn so that further prosecution of the suit may take place only if necessary compliance has been made. If no such step is taken by the party who intends to invoke the provisions of Section 35B of the Code, and remains silent and allows the Court to proceed with the suit he cannot be allowed to agitate the alleged non-payment, if any, after that date. In such a situation, the provisions of Section 35B of the Code are not at all attracted. The whole approach of the trial Court in this respect is wrong and illegal as it has acted illegally and with material irregularity in the exercise of its jurisdiction. The Full Bench decision of this Court in Anand Parkash's case (supra), has been wrongly interpreted by the trial Court. more-over it has been clearly laid down in that case that in the event of the party failing to pay the costs on the date fixed following ht e date of the order imposing the costs, it is mandatory or the Court to disallow the prosecution of the suit. It means, a s stated earlier, that on the next date when the costs are to be paid, necessary order, if any, under Section 35B of the Cod e, should be passed by the trial Court.

7. As a result of the above discussion, this revision petition succeeds and is allowed. The impugned order is set aside with costs. Costs assessed at Rs. 200/- . The parties through their counsel, have been directed to appear in the trial Court on the 10th August, 1982. The trial Court will further proceed with the suit in accordance with law. The records of the case be sent back forthwith.

8. Petition allowed.


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