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Simpy Films No. 12, Jullundur Vs. Rajdhani Films (P) Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1830 of 1980
Judge
Reported inAIR1981P& H24
ActsCode of Civil Procedure (CPC), 1908 - Sections 35-B
AppellantSimpy Films No. 12, Jullundur
RespondentRajdhani Films (P) Ltd. and ors.
Cases Referred and Nanak Chand v. Suresh Chand Jain
Excerpt:
.....that the provisions of section 35b of the code of civil procedure are clearly attracted and the trial court has acted illegally and with material irregularity in dismissing his application. under no circumstances, it could be said that the plaintiff failed to take any step which he was required to take on that date or he obtained any adjournment for taking any such step or for procuding evident. on the other hand, it appears that the defendant-petitioner is causing unnecessary delay by moving such like application......such defendant or groups of defendant as have been ordered by the court to pay such costs. (2) the costs, ordered to be paid under sub-section (1) shall not, if paid be included in the costs awarded in the decree passed in the suit; but if such costs are not paid, a separate order shall be draw up indicatin the amount of such costs and thenames ad addresses of the persons by whom such costs are payable and the order so draw up shall be executable against such persons.'from the language used therein it is quite clear that if a party to the suit fails to take the step which he is required by this court to take on that date, or seeks adjournment for taking such steps or for producig evidence on any other ground and the same is allowed by the court on payment of costs, the same shall be a.....
Judgment:
ORDER

1. The defendant-Petitioners has filed this revision petition against the order of the trial Court, dated 31st July, 1980, Whereby his application under Section 35B of the Code of Civil Procedure, was dismissed.

2. In civil Revision No. 2425 of 1979, decided on 17th December, 1979, it was ordered that the plaintiff is allowed to produce the two documents on payment of Rs. 300/- as costs. Since the parties already directed to appeal before the trail court on 3rd December, 1979 in Civil Revision No. 1239 of 1979, the parties appeared before the trial court on that date, but as the record of the case which had been summoned by the High Court, had not been received back in the trial Court, the case was adjourned to 17th December 1979. On 17th December,1979, it appears that the defendant-petitioner M/s Simpy Films Jullundur moved an application for amendment of issue and the case was adjourned to 19th January, 1980, for reply and arguments on that application. On 19th January,1980, the application for amendment issues was dispposed of and the case case was fixed for 15th March, 1980 for evidence of the plaintiff. The order of the trail Court on that date, reproduced in the Grounds for Revision, reads thus:

'For evidence of the plaintiff to come up on 15th March, 1980, the costs as ordered by the Hon'ble High Court has not been deposited or tendered or paid till today. It appears, meanwhile, the petitioner defendant moved an application under section 35B of the Code of Civil Procedure, for dismissal of the suit on the ground that since the plaintiff has failed to pay the costs of Rs. 300/- as ordered by the High Court, the suit was liable to be dismissed in view of the provisions of Section 35B. The trial Court, after hearing the arguments, had dismissed the same vide impugned order, dated 31st July 1980 it has been observed by the trial Court that :-

'In view of the law laid down in the above authorities, the application filed later on by the defendant No. 2 cannot deprive the plaintiff from prosecuting this suit, as it is open to the plaintiff to pay the costs when the documents are produced or tendered into evidence or the evidence or the defendant can recover the costs otherwise.' Feeling aggrieved against this, the defendant-petitioner has filed the present revision in this court.

3. The learned counsel for the petitioner vehemently contended that the provisions of Section 35B of the Code of Civil Procedure are clearly attracted and the trial court has acted illegally and with material irregularity in dismissing his application. He also referred to Smt. Hakmi v. Pitambar, (1978) 80 Pun LR 256: (AIR 1978 Punj & Har 145) and Nanak Chand v. Suresh Chand Jain (1979)) 81 Pun LR 581(AIR 1979 Punj & Har 229) in support of his contention.

4. The learned counsel for the plaintiff-respondent contended that no revision is ompetent against the impugned order and in any case Section 35B is not at all applicable.The whole effort of the defendant-petitioner is to delay the proceedings in the suit, and thus, to harm the interest of the plaintiff by delaying the same.

5. I have heared the learned counsel for the parties at great length, Section 35B of the Code of Civil Procedure, reads as under :--

(1) If, on any date fixed for the hearing of a suit for taking any step herein, a party to the suit--

(a) fails to take the step which he was required step of under this Code to take on that date, or

(b) obtains as adjournment for taking such step or for producing evidence or on any other ground, the court, may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the court, be reaonably sufficient to reimburse the other party in respect of the exepnses incurred by him in attending the Court of that date,and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the fruther prosecution of--

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs.

Explanation : Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further procesution of the defence by such defendant or groups of defendant as have been ordered by the Court to pay such costs.

(2) The costs, ordered to be paid under sub-section (1) shall not, if paid be included in the costs awarded in the decree passed in the suit; but if such costs are not paid, a separate order shall be draw up indicatin the amount of such costs and thenames ad addresses of the persons by whom such costs are payable and the order so draw up shall be executable against such persons.'

From the language used therein it is quite clear that if a party to the suit fails to take the step which he is required by this court to take on that date, or seeks adjournment for taking such steps or for producig evidence on any other ground and the same is allowed by the Court on payment of costs, the same shall be a condition precedent to the further prosecution of the suit. In the present case, Rs. 300/- as costs were awarded as the plaintiff was allowe to produce his two documents. In other words, the production of the said two document, was conditional on payment of Rs. 300/- as costs. Under no circumstances, it could be said that the plaintiff failed to take any step which he was required to take on that date or he obtained any adjournment for taking any such step or for procuding evident.On the other hand, it appears that the defendant-petitioner is causing unnecessary delay by moving such like application. At one stage when the plaintiff wanted to amek this payment of Rs. 300/-, the defendant refused to accept the same on the ground that it was not paid on th first date as ordered by the High Court. From al this it appears that for one reason or the other, the proceedings are being delayed on the part of the defendant..The authorities referred to above by the learned counsel for the petitioner, have absolutely no applicability to the facts of the present case; rather the observations made therein go against him, Section 35B of the Code of Civil Procedure deprives the plaintiff to prosecute the case if he fails to pay the costs on the date next following the date of order and is thus of extreme penalty and it shall not be imposed unless the cas sequarely falls within the four corners of this section.Thus, being a penal section, it is tobe contrued very strictly. Under the circumstances I do not find any ground to interfere in the order of the trial court dismissing the application of the defendant-petitioner.

6. The intention of the petitioner to delay the proceedings in the suit is also clear from the fact that he obtained the orders for summoning the record of the trial court in this petition. In my opinion, there was absolutely no occasion for getting this order from this court for summoning the record of the trial court.

7. For the reasons recorded above, this petition fails and is dismissed with costs. Costs assessed Rs. 300/-. Parties have been directe to appear I the trial courts on 1-10-1980.

8. Revision dismissed.


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