Punjab-Haryana High Court
Hakmi And Ors. vs Pitamber And Anr. on 1 February, 1978
Equivalent citations: AIR 1978 PUNJAB AND HARYANA 145
ORDER
1. This revision petition is directed against the order of the Subordinate Judge, 2nd Class, Ambala, dated October 27, 1977.
2. Briefly the facts which have given rise to this revision petition are as follows. The plaintiffs instituted a suit for possession of land in dispute. During the pendency of the suit, Talab, plaintiff No. 2 died and Baboo and Pitamber, who had been impleaded as plaintiffs on the death of Smt. Hira Devi, plaintiff No. 1, made an application that they were the legal representatives of Talab as he had executed a will in their favour. The defendants contested their claim. The applicants, in support of their application, led evidence on April 23, 1977. Thereafter the case was adjourned for evidence of the defendants for June 14, 1977. The Presiding Officer of the Court had relinquished the charge prior to that date and consequently the case and the application were adjourned to July 20, 1977. On that date the application was adjourned for evidence of the defendant--respondents to August 16, 1977. The defendants did not bring any evidence on that date and the case was adjourned to October 17, 1977 for their evidence subject to payment of Rs. 20/-as costs. On the adjourned date, the defendants neither brought their evidence nor paid the costs. Consequently their evidence was closed. A dispute was raised by the plaintiffs on that date that the defence of the defendants in the main case be also struck off as they had failed to pay the costs. The case was consequently adjourned to October 20, 1977. The counsel for the defendants, on the adjourned date, made an application that the defendants did not want to give any evidence.
3. The learned trial Court, in view of the aforesaid circumstances, ordered that the defence of the defendants in the main case be struck off. The defendants have come up in revision against the order of the Subordinate Judge, to this Court.
4. The only question that requires determination is whether in the circumstances of the case, the defence of the petitioners could be struck off. In order to determine this question, it will be necessary to read S. 35B of the Code of Civil Procedure, which is as follows:--
"35--B. Costs for causing delay.
(1) If, on any date fixed for the hearing of a suit or for taking any step therein, 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 reasonable 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 defendants, 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--s. (1) shall not, if paid, be included in the cost, awarded 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 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."
5. It has been experienced that one of the parties to the litigation wants to delay the proceedings for one reason or the other. He, in order to do so would not mind if some costs are awarded against him. After the costs are awarded, the party concerned in many cases does not pay the costs to the other side. The result is that without payment of the costs, the party delays adjudication of the lis. By incorporating this provision the payment of costs has been made a condition precedent for further prosecution of the suit, if he is a plaintiff and the defence, if he is a defendant. It further appears that the section would apply if costs are awarded for causing delay in the main suit. In case there is some miscellaneous application, disposal of which does not delay disposal of the main suit, the right to prosecute or defend the main suit cannot be taken away in view of the provisions of this section. If the application is of such a nature that the delay in its disposal would delay the suit, then the section becomes applicable and the party concerned can be deprived of his right to prosecute, if he is a plaintiff and defend, if he is a defendant. Explanation makes it clear that in the case of different groups of defendants, who have raised different defences, the group that fails to comply with order of payment of costs, shall be deprived of the right to defend and not the other group or groups.
6. In the present case, the decision of the suit was being delayed, because the defendants were contesting the right of the applicants to be impleaded as plaintiffs in place of Talab deceased. In the aforesaid circumstances the trial Court was justified in striking off the defence.
For the reasons recorded above, the revision petition fails and it is dismissed with no order as to costs.
7. Revision dismissed.