Skip to content


Prem Sagar and ors. Vs. Phul Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 2886 of 1981
Judge
Reported inAIR1983P& H385
ActsCode of Civil Procedure (CPC), 1908 - Sections 35-B; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 1-A
AppellantPrem Sagar and ors.
RespondentPhul Chand and ors.
Cases ReferredSri Kasi Biswanath Dev v. Paramanand Routrai
Excerpt:
.....is not to be easily acceded to. therefore, if on the date next following the date of the order of payment of costs the issue is not raised by either of the parties or taken notice of by the court, it cannot be said that thereafter on all or any subsequent date the same can be resuscitated or that section 35b would continue to apply with all its rigour thereafter as well. the failure to pay these costs results in the arising of a valuable right in the opposite party to bar the prosecution of the suit or the defence, as the case may be. ' 9. the question involved is equally capable of viewed from another angle, section 35b clearly raises a valuable right in favour of the party entitled to costs when default in payment thereof is made on the date next following. sood, learned counsel for..........case, is misconceived and unwarranted.'it must, therefore, be held that the question whether on a date or dates subsequent to the one expressly fixed for the payment of costs (and on which date the issue of costs is neither raised nor decided), the claim for barring the further prosecution of the suit or the defence can still be pressed against the defaulting party was neither expressly nor even remotely before the full bench in anand parkash's case.5. binding precedent being thus out of the way one must proceed to analyse the question on principle. to clear the decks for the examination of the issue it is necessary first to clarify the legal consequences which would flow from an order passed in conformity with the provisions of section 35b. it was sought to be argued a an inflexible.....
Judgment:

S.S. Sandhawalia, C.J.

1. Whether the party defaulting in the payment of costs on the date fixed therefor (whereon the question is not at all raised) canon the subsequent or dates be barred from further prosecuting the suit or its defence, as the case may be,--is the significant question which falls for adjudication in this reference, as a corollary to the ratio of the Full Bench in Anand Parkash v. Bharat Bhushan Rai, AIR 1981 Punj & Har 269, in the context of Section 35B of the Civil P. C.

2. Prem Sagar petitioner had preferred an application in the trial Court for obtaining a succession certificate regarding the assets of one Sant Ram, deceased. Therein, 11th of Sept., 1981 was fixed for filing of written reply by the respondents. This having not been done, a prayer for adjournment for fling the written reply was granted by the Court subject to the payment of costs of Rs. 20/- on the next following date the 25th of Sep., 1981. On the said date, reply to the application was allowed to be filed and the question of the payment of costs was not even remotely raised by either side and the case was adjourned to the 10th of Oct., 1981. On the aid date, the petitioner filed an application purporting to be under Section 35B of the said application was issued to the respondents and the case was adjourned to the 23rd of Oct., 1981. In the reply to the aforesaid application, the respondents pleaded that due to some misunderstanding, they were not ever aware about the order of payment of costs and were always ready and willing to pay the same and further filed an application praying for extension of the period for payment of the costs. Further the costs were tendered on that very day but were not accepted by the other party. By order dated the 9th of Nov., 1982, the trial Court rejected the application under S. 35B of the Civil P. C. holding that the respondents had never wilfully refused the payment of costs.

3. The petitioner then preferred the present civil revision which originally came up before R. N. Mittal, J. Noticing the significance of the ancillary question arising in the wake of the Full Bench judgment in Anand Parkash's case (AIR 1981 Punj & Har 269)(supra), and also some conflict of judicial opinion thereon the matter was referred for consideration by a larger Bench, and that is how it is before us.

4. Inevitably on must first turn to the Full Bench judgment in Anand Parkash's case (supra). The threshold question is whether its true ratio either expressly or by direct analogy covers the precise question before us. To my mind it seems manifest that the question before the Full Bench in Anand Parkash's case was plainly distinct and different. As is evident even from the opening formulation of the minority view of Sharma, J., the issue therein was whether the provision of S. 35B of the Code were mandatory or directory and he in terms answered to the effect that the provisions were directory in nature. Similarly, Jain, J., who had prepared the majority judgment (with which I concurred) had precisely framed the question before the Full Bench in the following terms :--

'On the respective contention of the learned counsel for the parties the question that needs determination is whether it is mandatory on the Court to disallow prosecution of the suit or the defence as the case may be, any further, in the event of the party failing today the costs on the date next following the date of the order imposing costs. The answer to this question was rendered in the following terms by the majority:-- 'In accordance with the majority decision it is held that in the event of the party failing to pay the costs on the date net following the date of the order imposing costs, it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be and that no other extraneous consideration would weigh with the Court in exercising its jurisdiction against the delinquent party. However, where the costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power under S. 148 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction.'

It would thus be plain from the above that the aforesaid ratio would not all be attracted to the precise question now before us. Indeed it has been so held categorically by J. V. Gupta, J. in Smt. Lachhmi v. Nirmal (C. R. NO. 836 of 1982) decided on 5th Aug., 1982 *, as under :--

'........As a matter of fact, this was never the point before the Full Bench in the aforementioned case (Anand Parkash's case), nor it was ever agitated before it therein. Therefore, the application of the ratio of the above-mentioned Full Bench decision of this Court to such circumstances as in the present case, is misconceived and unwarranted.'

It must, therefore, be held that the question whether on a date or dates subsequent to the one expressly fixed for the payment of costs (and on which date the issue of costs is neither raised nor decided), the claim for barring the further prosecution of the suit or the defence can still be pressed against the defaulting party was neither expressly nor even remotely before the Full Bench in Anand Parkash's case.

5. Binding precedent being thus out of the way one must proceed to analyse the question on principle. To clear the decks for the examination of the issue it is necessary first to clarify the legal consequences which would flow from an order passed in conformity with the provisions of Section 35B. It was sought to be argued a an inflexible proposition that in the event of clear-cut default in the payment of costs there was no option for the Court but to either dismiss the suit or strike out the defence as a whole, as the case may be. I regret my inability to read the provisions of Section 35B in this light. On its plain language what is mandated is that the further prosecution of the suit or of the defence is made a condition precedent on the payment of the costs ordered and in the event of default the same would be barred. The emphasis inevitably must be on the word 'further' and it should not be denuded of all meaning. It is well settled that the legislature in its wisdom does not use the words in a statute which may be wholly redundant and, therefore, any construction which renders a phrase or a word otiose is not to be easily acceded to. Therefore, the word 'further' in S. 35B would enjoin that on the date next following he date of the order of the Court to pay costs, the defaulting party thereto would not be allowed to take any further step or produce evidence in the prosecution of its case whether as a plaintiff or as a defendant. This, however, would not mean that whatever is already on the record before that date would also be wiped of as either non est or non-existent. A procedural provision, stringently penal in nature, as Section 35B, undoubtedly has necessarily to be construed strictly. To give it such a wide amplitude s as to make the dismissal of the suit incumbent in the case of the plaintiffs default in the payment of costs or to strike off the whole defence in the case of the defendant is neither called for on the specific language of Section 35B nor on the principles of sound construction. On an overall view of the whole section, the resultant effect of the default on the date next following the date of the order of payment of costs (the issue having been expressly raised) would be that thereafter the defaulting party can no longer be permitted to add anything to its case. The same consequently would have to be decided on the limited material and evidence existing on the record in favour of such a party. The section does not in terms prescribe that either the suit must be dismissed or that the defence be struck down as a whole.

6. Adverting back to the language of Section 35B as also to the ratio of Anand Parkash's case (AIR 1981 Punj & Har 269)(supra) it would be obvious therefrom that the crucial date on which the statute focuses itself is the date next following the date of the order of payment of costs. It is from the said date that the further prosecution of the suit or the defence is made conditional on the payment or tender of costs. The twin object or purpose, therefore, appears to be to avoid procrastination or delay by the parties in the already tardy pace of civil proceedings and to impose a heavy sanction for any non-compliance with the order to pay costs. As was observed in Anand Prakash's case (supra) such orders are in essence in terrorem, so that the unscrupulous litigant may not include in dilatory tactics. It calls for pointed notice that even here the result is not automatic and as held by the Full Bench a discretion still remains with the trial Judge under S. 148 of the Civil P. C. to exercise his power in favour of the defaulting party. Therefore, if on the date next following the date of the order of payment of costs the issue is not raised by either of the parties or taken notice of by the Court, it cannot be said that thereafter on all or any subsequent date the same can be resuscitated or that Section 35B would continue to apply with all its rigour thereafter as well. Indeed it seems inevitable that if on the crucial date fixed for the payment of costs the question is not raised at all, then impliedly a waiver of the right arising in favour of the party entitled to costs would necessarily follow. Therefore, on subsequent dates it would not be open to the parties to reopen the issue at their will and seek the barring of the further prosecution of the suit or the defence under Section 35B afresh. It is axiomatic that the law for the vigilant and not for these who blissfully sleep over their rights.

7. Again it seems to be manifest that an order of the payment of costs is plainly one in favour of the individual litigant. Under Section 35B such an order is in terms made for reimbursing the other party in respect of the expenses incurred by him in attending the Court on that date and is thus compensatory in nature. The failure to pay these costs results in the arising of a valuable right in the opposite party to bar the prosecution of the suit or the defence, as the case may be. Now on general principles, even, it is plain that a person in whose favour such a right accrues may waive the same. Obviously it would be untenable to hold that party must be compelled to exercise a right vested in him. Therefore it would follow that if such a right can be waived expressly, then equally it may be o done impliedly or at least deemed to be so in the eye of law. In the context of Section 35B if on the date next following the date of the order of the payment of costs, the issue is not raised by either of the parties or taken notice of by the Court, and the case is allowed to proceed further, it would follow that the party having the right to bar the further prosecution of the suit or the defence has waived its right. Thereafter it would not be possible to again exercise the ghost of the stringent provision of S. 35B at any and every subsequent date.

8. That the principle of waiver may validly be attracted in this context is supported by high authority. In Lachoo Mal v. Radhye Shyam, AIR 1971 SC2213, their Lordships held that the benefits under Section 1-A of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947, can be validly waived by the landlord in the following words :--

'.......In our judgment Sec, 1-A was meant for the benefit of owners of buildings which were under erection or were constructed after Jan, 1, 1951. If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the section. No question of policy much less public policy, was involved and such a benefit or advantage could always be waived.'

9. The question involved is equally capable of viewed from another angle, Section 35B clearly raises a valuable right in favour of the party entitled to costs when default in payment thereof is made on the date next following. Consequently, when on this crucial date, the right to bar the further prosecution of the suit or its defence (as the case may be) is neither pressed nor exercised by the party having the same and it allows the trial to proceed, then it would be obviously unconscionable to permit the exercise of the said right on the later and subsequent dates. Having expressly or impliedly allowed the suit to proceed, despite the clear provisions of Section 35B the party in whose favour a right had accrued, would be estopped on subsequent dates from reopening the issues afresh.

10. In fairness to the learned counsel for the petitioner I must notice that the core of his stand was that once a default in the payment of costs on the adjourned date takes place within the meaning of Section 35B then irrespective of the issue being raised or not on that date the proceedings subsequent there to would become wholly non est. The learned counsel had to go to the logical length of arguing that even when a suit had been dragged on for years it would still be open for the party to raise and equally on obligatory for the Court to stop the further prosecution of the suit or the defence even up to the stage of the pronouncement of the judgment if it could be established that the costs were not paid on the date fixed. Mr. L. K. Sood, learned counsel for the intervener, was equally pushed to the extreme stand of contending that even on appeal or in a second appeal as well (where no such objection was raised at the trial stage at all), it would be obligatory to apply Section 35B in its full rigour, the moment it was raised and established that there had been a failure or omission to pay the costs on the ordered date. Reliance was placed on Manohar Lal v. Mahesh Chand etc., (1983) 85 Pun LR (Short Note) 1, and Civil Revn. No. 106 of 1982(Sat Pal v. Banarsi Dass) decided on 25th May, 1982.

11. I regret my inability to subscribe to what appears to me a extreme and some-what doctrinaire stand raised on behalf of the petitioner and the intervener. Indeed the aforesaid argument, carried to its logical lengths, exposes its fallaciousness. I have already opined and independently held that Section 35B is open to no such construction. However, even if two constructions were possible (assuming entirely for the sale of argument) one must avoid the one which leads to the aforenoticed anomalous, if not absurd results. It seems both illogical and inequitable that on all subsequent date sin a suit, which may have dragged on for years or even in the later appellate or revisional stages, the ghost of barring the further prosecution of the suit or defence can be exercised at any stage later.

12. The view I am inclined to take is buttressed by the massive weight of precedent within this Court, even subsequent to the judgment in Anand Parkash's case (Air 1981 Punj & Har 269)(FB)(supra). Therein it has been consistently held that the ratio thereof did not cover the question arising before us and further that the rigour of Section 35B was not attracted to the subsequent date or dates, once the issue was not raised at all on the crucial date next following the date of the order of payment of costs. See Civil Revns, Nos. 836 of 1982(Smt. Lachhmi v. Nirmal) decided on 5th Aug. (July ?) 1982 *; 968 of 1982(Assa Nand v. Harish) decided on 16th Aug., 1982(reported in AIR 1983 Punj & Har 23); 1307 of 1982(Dharam Pal Nanda v. Smt. Prem Nanda) decided on 3rd June, 1982; and 1574 of 1982(Smt. Balwant Kaur v. Smt. Harbans Kaur) decided on 23rd Aug., 1982.

13. However, a slightly discordant note has been struck in C. R. 1786 of 1982(Manohar La l v. Mehesh Chand) decided on 24th Aug., 1982((1983) 85 Pun LR Short Note 1). Therein the trial Court had directed the payment of costs on the 13th of Jan., 1982 on which date the issue seems to have not been raised at all and the costs were not paid. The trial was allowed to proceed and later on the 4th of June, 1982 the costs were tendered but were refused by the opposite party. It was thereafter that an application was made that the defaulting party should be debarred from prosecuting its case which was rejected by the trial Court. This was reversed in revision. It obvious from the perusal of the short judgment that the mater was not adequately canvassed before the learned single Judge and it seems to have been assumed that the ratio of Anand Parkash's case (supra) governed the issue. As already shown above, that is not the case Equally the sharp distinction between the date next following the date of the order imposing costs and all other subsequent dates seems to have been altogether missed. For the detailed reasons recorded earlier, it has to be held with respect that Manohar Lal's case (supra) does not lay down the law correctly and is hereby overruled.

14. Again the somewhat wide ranging observations in C. R. No. 106 of 1982(Sat Pal v. Banarsi Dass)(supra) call for notice and have to be constricted and limited within the ratio now being laid in this Full Bench. The facts in Sat Pal's case were somewhat involved and do not need recapitulation in detail beyond the fact that the issue of the default in the payment of costs and the recall of the order of their payment were raised on the same date of the 12th of Dec. 1981., The learned Judge, however, made passing observations that the party receiving the costs was not at all obliged to remind the delinquent party to perform its duty and further that the words ':on the next date following the date of such order' would be applicable such a date and every subsequent date or dates to which the proceedings may be adjourned thereafter. To my mind, these observations were not wholly necessary for the decision of the case because admittedly the objection had been raised on the 12th of Dec., 1981 itself (on which the costs were to be paid) and therefore are in the nature of an obiter dicta. However, carried to their logical length, these observations would be contrary o the conclusion that I have arrived at in the conclusion that I have arrived at in the earlier part of the judgment and to this limited extent they are not good law.

15. Reference must necessarily be made also to Sri Kasi Biswanath Dev v. Paramanand Routrai, AIR 1982 Orissa 80, wherein a dissent has been expressed with the view of the Full Bench in Anand Parkash's case. It would appear that in Kasi Biswanath Dev's case, the default in he payment of costs was made on the 16th of Sep., 1981. On that date the issue was not even remotely raised and the trial proceeded from day to day on innumerable dates and it was only on the 30th of Sept., 1981 that the application under Section 35B of the Civil P. C. was moved. Though plainly, the application therein was moved long after the date fixed for the payment of costs, it was nevertheless assumed that the ratio in Anand Parkash's case (supra) was applicable to the situation and in that context a dissent has been expressed in the context a dissent has been expressed in the Kasi Bishwanath Dev's case (supra). As I have already shown above, in the aforesaid situation the ratio of Anand Parkash's case (supra) would not at all be attracted and the case was clearly distinguishable.

16. To conclude, both on principle and precedent, a also on the language of S. 35B, the answer to the question posed at the very outset is rendered in he negative. It is held that the party defaulting in the payment of costs on the date fixed for the payment thereof (on which date this issue is not at all raised) cannot on subsequent date or dates be barred afresh from further prosecuting the suit or the defence, as the case may be.

17. Applying the above, it necessarily follows that this revision petition must fail on the common ground that on 25th Sept., 1981, which was the date fixed for the payment of costs, the issue of their payment was not raised at all and the reply to the application was duly received and the case was allowed to proceed for consideration thereof on 10th Oct., 1981. It was only on the latter date that the matter was sought to be raked up afresh by putting in an application which stands rejected by the trial Court. On the following date the costs were tendered but refused and in reply it was explained that due to some misunderstanding the respondents were not aware of the order of costs and were always ready for the payment of the same. The trial Court rightly rejected the application and in revisional jurisdiction we find nor the least justification to interfere with it. The revision petition is hereby dismissed with no order as to costs.

Prem Chand Jain, J.

18. I agree.

S.C. Mital, J.

19. I agree.

20. Revision dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //