Haryana Urban Development Authority vs Tejinder Mohan Singh Liberhan

D.V. Sehgal, J.

This revision petition has been filed by the Haryana Urban Development Authority, the defendantpetitioners against the order dated 26.11.1982 passed by the learned SubJudge IInd Class, Ambala City, whereby an application under section 35B, C.P.C. filed by the plaintiffrespondents was allowed and the defendantpetitioners were debarred from prosecuting its defence. By the same order, the trial court decreed the suit of the plaintiffrespondents granting them the relief of permanent injunction prayed for. The plaintiffrespondent filed the instant suit on 25.5.1982. Summons for the services of the defendantpetitioners were issued for 14.6.1982 on which date the appearance was put in by the Government Pleader on their behalf. The case was adjourned to 19.7.1982 for filing the written statement but on that date the written statement was not filed and the following order was passed by the trial Court :

"W.S. not ready. An adjournment is requested. The same is opposed. In the interest of justice, case adjourned to 21.8.1982 for filing the W.S. subject to the payment of Rs. 15/ as costs. Long date is requested for W.S.''''.

On 21.8.1982 again the written statement was not filed and the trial Court passed the following order :

"Written statement and reply of stay application not ready. Ld. G.P. for the defendants states that some other cases having the same subject matter and the same question of fact and issue to be decided are pending for 4.9.1982 against the defendants and as such an adjournment is requested for filing the written statement and reply of stay application of all the cases. As per the request of Ld. G.P. for the defendant case is adjourned to 4.9.1982 for filing the written statement and reply of stay application and consideration of stay application.''''

On the adjourned date, i.e. 4.9.1982, the defendantpetitioners filed the written statement as also the reply to the stay application. On the same day the plaintiffrespondents moved an application under section 35B, C.P.C. wherein it was pointed out that adjournment was granted to the defendant petitioners on 19.7.1982 for filing the written statement on 21.8.1982 subject to payment of Rs. 15/ as costs. It was further submitted in the application that the defendantpetitioners had failed to pay the costs either on 19.7.1982 or on 21.8.1982. On the strength of a Full Bench judgment of this Court in Anand Parkash v. Bharat Bhushan, 1981 PLJ 324 : 1982(1) R.C.R.(Rent) 1, it was prayed that since the mandatory provisions of section 35B, C.P.C. had not been complied with, the defendantpetitioners should be debarred from further prosecuting its defence and by pressing into service the provisions of Order VIII, Rule 10, C.P.C. the suit of the plaintiffs should be decreed with costs. This application was allowed by the trial Court vide order under revision. The defendantpetitioners were debarred from prosecuting their defence and the suit of the plaintiffrespondents was decreed. This is how the defendant petitioners have filed this revision petition against the aforesaid order dated 26.11.1982 of the learned SubJudge IInd Class, Ambala City.

Mr. Manoj Swarup, the learned counsel for the defendantpetitioners, had contended that the crucial date on which the costs were required to be paid was 21.8.1982. No doubt the costs were not paid on that date but the plaintiffrespondents also did not raise the issue of nonpayment of costs and did not ask the Court on that basis to debar the defendantpetitioners from prosecuting their defence. The case was in fact adjourned from 21.8.1982 to 4.9.1982 for filing the written statement by an order of the trial Court, which has already been reproduced above. Mr. Manoj Swarup has submitted that by not pressing for payment of costs on 21.8.1982 the plaintiffrespondents had impliedly waived their right arising out of the nonpayment of costs and in fact allowed the proceedings in the suit to be adjourned to 4.9.1982. Reliance in support of this submission has been placed on a Full Bench judgment of this Court in Prem Sagar v. Phul Chand and others, 1983 PLJ 470 : 1983(2) R.C.R.(Rent) 405 : 1984 R.R.R. 576, wherein while discussing the various aspects of the deterrent provisions of section 35B, C.P.C., it was inter alia held as under :

"Therefore, if on the date next following the date of the order of payment of costs the issue is not raised by either of the parties or taken notice of by the Court, it cannot be said that thereafter on all or any subsequent date the same can be resuscitated or that section 35B would continue to apply with all its rigour thereafter as well. Indeed it seems inevitable that if on the crucial date fixed for the payment of costs the question is not raised at all, then impliedly a waiver of the right arising in favour of the party entitled to costs would necessarily follow. Therefore, on subsequent dates it would not be open to the parties to reopen the issue at their Will and seek the barring of the further prosecution of the suit or the defence under section 35B afresh. It is axiomatic that the law is for the vigilant and not for those who blissfully sleep over their rights.''''

Mr. M.S. Leberhan the learned counsel for the plaintiffrespondents, has on the other hand firstly contended that the present revision petition was not maintainable as the order of the trial Court from which the revision has been filed had resulted in a decree, the defendantpetitioners, therefore, had the right to file an appeal, and in view of the provisions of section 115, C.P.C. the present revision petition could not be maintained. This contention, in my view, is not sustainable. In Assa Nand v. Harish Kumar and others, AIR 1983 Punjab & Haryana 23 : 1982(2) R.C.R.(Rent) 410, J.V. Gupta, J. dealt with almost a similar contention and rejected the same. In spite of the fact that the order allowing application under section 35B, C.P.C., had resulted in a decree, such order fell within the ambit of the phrase "any case which has been decided''''. As far as the defendantpetitioners were concerned, the controversy had really come to an end the moment the application under section 35B, C.P.C. was allowed and they were debarred from prosecuting its defence. I am, therefore, of the view that the present revision petition is maintainable.

It has been next contended by the learned counsel for the plaintiff respondents that on 21.8.1982 no proceedings in the suit had in fact taken place and the case was adjourned to 4.9.1982 because a number of other similar cases were pending against the other defendants and those were sought to be transferred to one and the same Court for their trial. The order of the trial Court dated 21.8.1982 clearly shows that there was a hearing of the suit on that date and by a detailed order the proceedings were adjourned to 4.9.1982. Mr. Liberhan attempted to distinguish the Full Bench judgment in Prem Sagar''s case (supra) by submitting that the plaintiffrespondents brought tot he notice of the Court the default of nonpayment of costs by the defendant petitioner right on the next date, i.e. 4.9.1982, by moving a proper application. The ratio of the Full Bench judgment, however, is that if on the date when the costs were to be paid the issue is not raised by either of the parties or taken notice of by the Court, it cannot be so raised on any subsequent date to press into service the provisions of section 35B, C.P.C.

In view of the position of law as explained above, this revision petition is allowed and the order dated 26.11.1982 of the learned SubJudge IInd Class, Ambala City is set aside. As a consequence the decree passed by the trial Court would become non est. The trial Court is directed to restore the suit on the file. The defendantpetitioners have already filed their written statement. The suit should be further tried on merits. There shall, however, be no order as to costs.

The parties through their counsel are directed to appear before the trial Court on August 30, 1985.