Pogula Kesavayya vs Pogula Venkayamma being minor by father and next friend Bollimuntha Krishnaiah

Ramaswami, J.—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.

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.

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.

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.

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.

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 alias Ramasami Chettiar and Others Vs. Ramakkal and Another, . 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 Narayandas Vs. Shrikisan, ; --

''Mohamed Baksh v. Sahu'', AIR 1942 Lah 162 (2) (D) and -- AIR 1930 171 (Oudh) .

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. -- Shaikh Kalu Sarang and Others Vs.

Srimati Abedannessa Khatun, . This requirement has also been complied with in this case. It is quite true that an order directing payment of costs

can be executed u/s 36, Civil P. C. But the payment of costs may also be made a condition prece- dent to the adjournment. Raju Chettiar alias

Ramasami Chettiar and Others Vs. Ramakkal and Another, . Such a condition need not however be express if it is sufficiently obvious from the

context. -- Dadamudy Tatayya and Others Vs. Kelachina Venkatasubbarayya Sastri, ''Ramchand v. Ali Akbar'', AIR 1916 Lah 162 (H); --

Narendra Nath Sannyal and Others Vs. Uma Charan Ghosh, . If the costs are not So paid, the defaulting party has no right to be heard Dadamudy

Tatayya and Others Vs. Kelachina Venkatasubbarayya Sastri, . 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: Raju Chettiar alias Ramasami Chettiar and Others Vs. Ramakkal and Another, ; -- AIR 1940 158 (Nagpur) '' AIR

1925 102 (Oudh) and -- Sewratan Vs. Kristo Mohan Shaw and Others, ; -- AIR 1944 39 (Oudh) . 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. -- East Indian Railway Company Vs. Jit Mal Kallo Mal, and --

''Veerabadrappa Chetti v. Chinnamma'', 21 Mad 403 (O).

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.

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.