Delhi High Court
M/S. S.A. Brothers & Co. & Another vs M/S. John Bartholomow & Son Ltd. & Others on 7 November, 2000
Equivalent citations: 2001IAD(DELHI)81, 88(2000)DLT425, 2000(56)DRJ685, 2001RLR134
ORDER Khan, J.
1. Respondent No.1 (Plaintiff) filed a suit against petitioners (defendants) for recovery of Rs. 99,900/-. During its pendency petitioners filed an application under Order 25 Rule 1 CPC to ask security for costs from respondent No.1. Trial court dismissed this vide impugned order dated 31st January, 1991 on the ground that petitioners had admitted respondent No.1's part claim of Rs. 15,178.35 and no counter claim was filed them for remaining amount.
2. Petitioners feel aggrieved and have filed this revision to challenge the impugned order on the ground that it disregarded terms of proviso to Order 25(1) CPC.
3. Petitioners' case is that trial court was bound to pass the order asking respondent No.1 security for costs under provisions of the relevant proviso which were mandatory in nature. It is submitted that court was only required to see whether requirements of this provision, viz., (i) whether plaintiff was residing outside India and (ii) whether he did not possess sufficient immovable property within India, were fulfillled. The court could not examine the merit of rival claims in the suit to decline the direction.
4. This position is repelled by the other side on the plea that trial court was not to proceed in the matter mechanically and could reject the prayer where it found that plaintiff's claim or part of it was admitted.
5. Relevant proviso to Order 25(1) CPC reads thus:
"Provided that such an order shall be made in all cases which it appears to the that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are residing out of India and that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property within India other than the property in suit."
6. A perusal of its provisions suggests that it was mandatory in terms. This is apparent from the use of expression "shall be made in all cases" occurring therein. The provision prescribes only two requirements for passing such an order, viz., (i) where plaintiff resided outside India and (ii) where it was not possessed of any sufficient immovable property within India. From this it becomes clear that trial court had no option but to pass an order asking for security of costs from plaintiff where it found that he was residing outside India and was not possessing sufficient immovable property within India. It could not divert to examination of any other issue, including prima facie evaluation of rival claims/counter claims for passing such an order.
7. It was the admitted position in the present case that respondent No.1 was residing outside India and had no immovable property in India. As such trial court was required to pass requisite orders asking security for costs from respondents. It had no choice in the matter. Nor could it fall back upon the prima facie merit of the claims in the suit to reject petitioners' prayer. The impugned order is set aside and respondent No.1 is directed to furnish security by depositing Rs. 6,000/- in the trial court within three months.