Himachal Pradesh High Court
Paras Ram & Others vs State Of H.P. & Others on 17 October, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 104 of 2016 Reserved on: 03.10.2016 Decided on: 17.10.2016 .
_________________________________________________ Paras Ram & others. .....Petitioners.
Versus State of H.P. & others. ......Respondents.
_________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
of 1 Whether approved for reporting? Yes. _________________________________________________ For the petitioners: Mr. I.D. Bali, Sr. Advocate, with rt Mr. Virender Bali, Advocate.
For the respondents: Mr. Virender K. Verma, Addl. AG, with Mr. Pushpinder Jaswal, Dy.
AG, for the respondent/State.
Chander Bhusan Barowalia, Judge.
The present petition is maintained by the petitioners/plaintiffs (hereinafter referred to as 'the petitioners') against the order of learned Civil Judge (Sr. Division) Court No. 1, Mandi, H.P., passed in CMA No. 164-VI/15 in Civil Suit No. 10933/2013(60-I/12), dated 19.12.2015, whereby the learned Court dismissed the application of the petitioners under Section 151 CPC for striking off the defence of newly added defendants 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:23:17 :::HCHP 2No. 3, 4, 5, 6 and 7 for non-payment of costs vide order dated 09.10.2014, whereunder the application under Order 1, Rule 10(2) CPC was allowed subject to payment of costs of `10,800/-
.
(rupees ten thousand eight hundred).
2. Briefly stating the facts giving rise to the present petition are that the petitioner instituted a suit against the respondents/defendants (hereinafter referred to as 'the of respondents') seeking permanent prohibitory and mandatory injunction under Sections 38 and 39 of the Specific Relief Act, rt wherein it was averred that defendants may be restrained permanently from raising construction of water tank nearby/over the source of water canal ('kuhul') on the land comprised in Khasra No. 528, situated in Mohal Sajha/522, Sub Tehsil Aut, District Mandi, H.P. Subsequently, on 14.08.2012, the learned Court in the above mentioned suit directed the parties to maintain status quo qua nature and construction of water channel on the water source. As per the petitioner, when the case was at the stage of arguments, an application under Order 1, Rule 10(2) CPC read with Section 151 CPC, for impleading the applicants therein as defendants, was filed. The same was opposed, however, the learned Court below allowed the application subject ::: Downloaded on - 15/04/2017 21:23:17 :::HCHP 3 to payment of costs of `10,800/-. The costs was not deposited and on 12.01.2015, the counsel for the newly added defendants stated in the Court that only applicants/defendants 5,12,32,38 and .
46 want to contest the case and only these defendants be allowed to deposit costs of `1000/- @ `200/- each. The plea was accepted by the learned Court below and applicants/defendants No. 5,12,32,38 and 46 were added as defendants and they were also of allowed to deposit costs @ `200/- each. Consequently, the petitioner, by way of an application under Section 151 CPC, rt prayed for striking off the defense of newly added defendants succinctly on the ground that the order dated 09.10.2014, passed in CMA No. 145/14, was a conditional order and the non-fulfilment thereof has rendered the order inoperative. However, the learned Court below did not accept the application and dismissed the same. Resultantly, defendants No. 5, 12, 32, 38 and 46 were allowed to defend the case after depositing costs of `200/- each.
Hence the present petition.
3. The learned counsel for the petitioner has argued that the order passed by the learned Court below is required to be interfered with, as imposition of costs was a condition precedent for further proceedings of the case and as the defendants have ::: Downloaded on - 15/04/2017 21:23:17 :::HCHP 4 not deposited the imposed costs, that is, `10,800/- , the defence of the defendants was required to be closed. Conversely, the learned counsel for the respondents has argued that the .
contesting defendants have deposited the costs of their share and, therefore, there is no illegality in dismissing the application of the present petitioners. In rebuttal, the learned counsel for the petitioner has relied upon a decision in Anand Parkash vs. of Bharat Bhushan Rai and another, AIR 1981 Punjab and Haryana 269 (Full Bench).
rt
4. Heard. To appreciate the rival contentions of the parties, I have gone through the record in detail.
5. Order dated 09.10.2014, passed by the learned Court below, is extracted in extenso as under:
"This order shall dispose off an application under order 1Rule 10 of the Code pf Civil Procedure having been moved by the 54 applicants for adding them as defendants in the present suit. It is averred by the applicants that the plaintiffs have filed the suit for permanent prohibitory injunction against State of H.P. with the allegations that they have been allegedly irrigating their land through the "Kuhal Khai Ka Nalla". The source has been claimed by them to be in Khasra No. 528 which is existing nearby the "Nalla" comprised in Khasra No. 527. the defendants in the main suit have been sought to be restrained from causing any interference in construction of water tank so as to divert the water to the ::: Downloaded on - 15/04/2017 21:23:17 :::HCHP 5 tank. The state on the other hand has pleaded that the Irrigation and Public Health Department has constructed a water supply scheme "Sojha-jeori-Kigas" from its spring source in the year 1978-79 which is situated over the Government Land on the .
bank of "Khahi Nalla" to provide drinking water to the inhabitants of the village Sojha and jeori. The scheme has been functioning since the year 1978-79. However, during the Monsoon season the water changed its course from one side of the boulders to other and the chamber has also been destroyed. The employees of the Irrigation of and Public Health Department have prepared a new small chamber 2x2 feet at the new source so as to start it. No Kuhal has been in existence on the spot where as rt the entire water is being used for drinking requirement of the inhabitants of the two villagers. The result of the case would effect all the residents of the village Sojha and jeohri and as such they want to be impleaded as defendants.
On filing of this application a reply has been preferred by the plaintiffs by stating that the proposed applicants are not the necessary or proper parties to be impleaded in the present suit and that they are 54 applicants in the application but the power of attorney of only 41 persons has been filed. Two of the applicants have already appeared in the witness box as witnesses and the application has been filed due to enmity qua which FIR No. 60 dated 15-06-2012 has also been instituted. The file has already been listed for arguments at which state this application has been moved just to delay the matter. No reply to the application has been preferred by the defendants.
Learned counsel for the applicants has argued that they are required to be impleaded as defendants as the fate of the ::: Downloaded on - 15/04/2017 21:23:17 :::HCHP 6 case shall determine their rights and that they want to be heard. Power of attorney of all the applicants is on record. As against this the learned counsel for the plaintiff has argued that the application has been moved just to delay the proceedings and that it be .
dismissed.
Thus after hearing the learned counsel for the parties and going through the respective pleadings it is discernible that the plaintiffs have sought injunction against the defendants i.e. State of H.P. and Executive Engineer, Irrigation and Public Health Division Mandi, restraining them of from constructing the water tank near by or over the source of water channel on Khasra No. 528. A prayer of Mandatory injunction rt requiring the restoration of "Khai Nalla Ki Kuhal" to its original position has also been made. The applicants have been stating that they would be affected by the adjudication in the matter, as such they are required to be impleaded as defendants as their water scheme is involved in the instant case being undertaken by the State of H.P. and the Irrigation and Public Health Department. Accordingly, keeping this assertion in view, it is appropriate that the applicants be arrayed as defendants in the suit and there is substance in the assertion of the applicant. However as this application has been moved at the fag end of the proceedings and some of the applicants have also appeared as witnesses is the case as such the application is allowed subject to cost of Rs. 10,800/-. Let the file be put up for filing of the amended memo of the parties as well as for written statement for 20.1.2014."
6. From the above order it is clear that costs of `10,800/-
was imposed upon the defendants therein and the application was ::: Downloaded on - 15/04/2017 21:23:17 :::HCHP 7 allowed. There is no mention of costs of `200/- each, as has been held by the learned Court in the subsequent order dated 19.12.2015, passed in the application of the present petitioner .
(plaintiff). Whether the Court can proceed further after part payment of costs, as has been done in this case, I would like to refer to Section 35(B) of the Code of Civil Procedure, 1908, which reads as under:
of "35B. Costs for causing delay.--(1) If, on any date fixed for the hearing of a suit or for taking any step therein, rt a party to the suit--
(a) fails to take the step which he was required by or under this Code to take on that date, or
(b) obtains an 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 reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of--
(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs,
(b) the defence by the defendant, where the defendant 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 prosecution of the defence by such defendants or groups of defendants 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 ::: Downloaded on - 15/04/2017 21:23:17 :::HCHP 8 in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons."
.
7. Further the Hon'ble High Court of Punjab and Haryana in case titled as Anand Parkash vs. Bharat Bhushan Rai and another, AIR 1981 Punjab and Haryana 269 (Full of Bench), has held as under:
"22. ... ... ... ... ... ...
rt When the provisions of Section 35B are analysed we find that the Legislature was not satisfied by using the word 'shall' only and this word shall' in the Section is qualified by the words 'condition precedent'. Where a statute declares that doing of a particular thing shall be a condition precedent, then obviously the intention is to make it a peremptory mandate. A condition precedent is a condition which must be performed. If the Legislature had not intended to make the provisions of the Section mandatory, then it was not at all necessary for the Legislature to have qualified the word 'shall' by using words 'condition precedent'.
The Legislature has made its intention absolutely clear by using the words 'shall be a condition precedent' that the provisions of this section are mandatory in nature and that any non-compliance of these provision would be fatal. To me, the words 'condition precedent' qualifying the word ' shall' appear to be the clincher for interpreting the provisions of Section 35B are mandatory. As has been observed earlier the costs are ordered to be paid to compensate the other party who for no fault of his has to undergo inconvenience and incur expenses. If an adjournment is sought and the same is granted on payment of costs, then on the next date of hearing the party who sought adjournment ::: Downloaded on - 15/04/2017 21:23:17 :::HCHP 9 is bound to pay the costs. In my view, on he plain language of the section the Court is only required to see whether the costs have been paid or not and if a party does not pay the costs, then the only course open to the Court is to disallow the prosecution of the suit or the defence any further. The Court would .
not go into the question whether the party who sought adjournment has or has not been guilty of delaying he suit or that it was not useful for the party to lead evidence or that the adjournment sought was unnecessary. When a party seeks adjournment, he pays the costs for his own folly or mistake which results into inconvenience and unnecessary harassment to the other side. He does of not do so as an act of benevolence. Moreover, a litigant is excepted to show full respect to the words of the Court. He cannot be permitted to ignore rt them or flout them with impunity. In case he opts to disregard the orders of the court and fails to pay the costs, then he must suffer penal consequences. The duty of paying costs is on the party who has been ordered to pay the costs. The Court or the party who has to receive costs, is not obliged to remind this delinquent party to perform its duty. The whole purpose of enacting this provision would be frustrated if the same is held to be directory. It may again be emphasised that the Courts are not required to find out as to what was the intention of the party in obtaining adjournment as the moment an adjournment is obtained on the date on which a suit is fixed for hearing or for taking any step therein, then the same results in the delay of the decision of the suit. One of the essential requirements for attracting the applicability of this provision is that the date has to be when a suit is fixed for hearing or for taking any step therein. If the date is only for depositing of process fee or for doing some such act; then it cannot be said that the suit was fixed for hearing or for taking any step therein. When once the ingredients of the Section are proved, then no other extraneous consideration would be taken into account by the Courts."
8. In view of what has been discussed hereinabove, this ::: Downloaded on - 15/04/2017 21:23:17 :::HCHP 10 Court finds that the learned Court below allowed the application filed by the applicants/defendants under Order 1, Rule 10(2) CPC read with Section 151 CPC, vide its order dated 09.10.2014, .
subject to deposit of costs of `10,800/-, so the imposition of costs was a condition precedent. As held above, there was nothing like newly added defendants can deposit costs of `200/- each.
Therefore, the newly added defendants are required to deposit of the entire amount of costs.
9. Accordingly, the present revision petition is allowed rt and it is ordered that the newly added defendants will deposit the entire amount of costs, that is, `10,800/- within four weeks from today and only then the Court will allow them to joint the proceedings as per law.
10. In view of the above, the petition stands disposed of, as also pending application(s), if any. No costs.
11. The parties are directed to appear before the learned Trial Court on 15.11.2016. Records, if any, be also sent forthwith.
(Chander Bhusan Barowalia) Judge 17th October, 2016 (virender) ::: Downloaded on - 15/04/2017 21:23:17 :::HCHP 11 .
of rt ::: Downloaded on - 15/04/2017 21:23:17 :::HCHP