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Pogula Kesavayya Vs. Pogula Venkayamma Being Minor by Father and Next Friend Bollimuntha Krishnaiah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1987 and 1988 of 1952
Judge
Reported inAIR1954Mad267
ActsCode of Civil Procedure (CPC) , 1908 - Order 17, Rule 1 and 1(2)
AppellantPogula Kesavayya
RespondentPogula Venkayamma Being Minor by Father and Next Friend Bollimuntha Krishnaiah
Appellant AdvocateM. Bhujanga Ro, Adv.
Respondent AdvocateC. Kondiah, Adv.
DispositionRevision dismissed
Cases ReferredVeerabadrappa Chetti v. Chinnamma
Excerpt:
- - or the rules framed thereunder did not empower the court to make an order striking off the defences for default of payment of costs of adjournment which could be realised by levy of execution like any other executable decree or order. umacharan',air1919cal111 (h-i). if the costs are not so paid, the defaulting party has no right to be heard air1928mad786 .if a suit or appeal is adjourned a condition that it will stand dismissed if the costs of the adjournment is not paid by the appellant or defendant within a certain date, then on failure of payment of costs within such a date the suit or appeal will stand dismissed:.....and that in default thereof the defence would be struck off and that these costs would not form costs of suit and that the suit would be adjourned only subject to the above conditions to 18-8-1952. there is no dispute that on 18-8-1952 this defendant did not pay the costs and the consequential result has followed.5. this c. r. p. no. 1988 of 1952 is filed against this order dated 26-7-1952 on the ground that the learned district munsif did not notice that either order 17, civil p. c. or the rules framed thereunder did not empower the court to make an order striking off the defences for default of payment of costs of adjournment which could be realised by levy of execution like any other executable decree or order.6. in my opinion this contention is without any substance. in granting.....
Judgment:
ORDER

Ramaswami, J.

1. C. R. P. No. 1988 of 1952 has been filed against the order made by the learned District Munsif of Tenali in O. S. No. 268 of 1951. C. R. P. No. 1987 of 1952 has been filed against the order of the Same Judge in I. A. No. 835 of 1952 in O. S. No 268 of 1951.

2. The facts are: the suit O. S. No. 268 of 1951 has been filed by Pogula Venkayamma, being a minor represented by her father and next friend B. Krishnaiah, against her husband for maintenance etc.

3. The case for this husband was that it was quite true that he tied tali and as a matter of fact he lived with the plaintiff for sometime but that it was only a show of marriage, whatever that may mean, and that he is not liable for any amount as contended by the plaintiff.

4. The suit underwent several adjournments, On 26-7-1952 when this suit of. 1951 stood posted for final hearing, the defendant was not ready. Therefore the learned District Munsif passed an order that the defendant will have to pay Rs. 40 as costs before 11 a.m. on the next hearing date and that in default thereof the defence would be struck off and that these costs would not form costs of suit and that the suit would be adjourned only subject to the above conditions to 18-8-1952. There is no dispute that on 18-8-1952 this defendant did not pay the costs and the consequential result has followed.

5. This C. R. P. No. 1988 of 1952 is filed against this order dated 26-7-1952 on the ground that the learned District Munsif did not notice that either Order 17, Civil P. C. or the rules framed thereunder did not empower the Court to make an order striking off the defences for default of payment of costs of adjournment which could be realised by levy of execution like any other executable decree or order.

6. In my opinion this contention is without any substance. In granting an adjournment under Order 17, Rule 1(1), Civil P. C., the Court may if it thinks fit direct the party asking for adjournment to pay costs to the other party. -- 'Shanks v. Savage', 7 Cal 177 (A). Costs of adjournment can be awarded against the plaintiff suing in 'forma pauperis'. -- 'Raju Chettiar v. Ramakkal', AIR 1941 Mad 437 (B). The principle underlying the rule is that the party who is ready to proceed with the suit Should be awarded such costs as can reasonably be held to be 'occasioned by the adjournment' and as might reasonably compensate him for the expenses incurred by reason of the adjournment. The expression 'occasioned by the adjournment' is deliberately used in Order 17, Rule 1(2), Civil P. C., in order that the discretion of the Court should not be restricted to the taxable costs of the day. Of course the condition imposed should not be in the nature of penalty or punishment to the party asking for adjournment, and hence the costs awarded should in no case exceed a sum commensurate with the expenses which in the opinion of the Court the party ready to proceed with the suit reasonably incurs as a result of the adjournment. -- 'Jadavbai v. Shrikisan', : AIR1946Bom113 (C); -- 'Mohamed Baksh v. Sahu', AIR 1942 Lah 162 (2) (D) and -- 'Gajendra Sah v. Ramcharan', (E).

In this case the sum. of Rs. 40 is certainly not punitive but was commensurate, with the expenses which plaintiff would have to incur by reason of the adjournment. I need not add that sufficient opportunity should be given to the party to obey this order. -- 'Kalu Sarang v. Mt. Abedannissa Khatoon'. : AIR1926Cal1221 (F). This requirement has also been complied with in this case. It is quite true that an order directing payment of costs can be executed under Section 36, Civil P. C. But the payment of costs may also be made a condition prece-dent to the adjournment. AIR 1941 Mad 437 (B). Such a condition need not however be express if it is sufficiently obvious from the context. -- 'Tatayya v. K. Venkatasubbaraya' : AIR1928Mad786 'Ramchand v. Ali Akbar', AIR 1916 Lah 162 (H); -- 'Narendranath v. Umacharan', : AIR1919Cal111 (H-I). If the costs are not So paid, the defaulting party has no right to be heard : AIR1928Mad786 . If a suit or appeal is adjourned a condition that it will stand dismissed if the costs of the adjournment is not paid by the appellant or defendant within a certain date, then on failure of payment of costs within such a date the suit or appeal will stand dismissed: AIR 1941 Mad 437 (B); -- 'Mt. Jani v. Mt. Soni' 'Ashgar Ali v. Mahabir' and -- 'Sewaratan v. Kristo Mohan', : AIR1922Cal320 (H); -- 'Hardayal v. Ramghulam', (M). Similarly if the suit is adjourned on condition that if the defendant does not pay the costs ordered before the adjourned date the defence will be struck off and the suit proceeded with 'ex parte', the Court can therefore in case of default strike off the defence. -- 'E. I. Railway Co. v. Jitmal' : AIR1925All280 and --'Veerabadrappa Chetti v. Chinnamma', 21 Mad 403 (O).

7. Therefore, the contention of the learned advocate is without any substance and this civil revision petition has got to be and is hereby dismissed with costs.

8. On this conclusion it is agreed to by the learned advocate that the other C. R. P. No. 1987 of 1952 has also got to be dismissed be-cause it arises from an order of the learned District Munsif refusing to permit the filing of an additional written statement and so when the defence has got struck off and I have refused to interfere this question does not arise, This civil revision petition also is dismissed and inasmuch as I have provided for costs in the other civil revision petition without costs.


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