Raghbir Singh vs Karam Singh

J.V. Gupta, J.

This revision petition is directed against the order of the trial Court dated September 24, 1987, whereby the order dated November 4, 1986, by which the defence of the defendant was struck off under section 35B of the Code of Civil Procedure (hereinafter called the Code), for nonpayment of the costs, was reviewed after more than ten months.

Gurcharan Kaur filed the suit for possession on November 11, 1985. November 4, 1986 was the date fixed for the evidence of the defendant on payment of costs. The defendant neither paid the costs, nor led any evidence. Consequently, the defence was struck off under section 35B of the Code. Thereafter three dates were given for the evidence of the plaintiff which was closed on December 13, 1986. The case was then fixed for arguments on December 22, 1986. The same was being adjourned from time to time when on August 31, 1987, defendant moved an application purporting to be under sections 114, 148 and 151 of the Code, for reviewing the order dated November 4, 1986. That application was resisted by the plaintiff. The trial Court relying upon the judgment of this Court in Municipal Committee, Kharkhoda v. Bhim Singh, 1987 RLR 1987 allowed the said application with observations :

"After giving the matter my consideration, in my opinion, the order dated November 4, 1986 needs to be reviewed. As mentioned above, the said orders dated August 18, 1986 and November 4, 1986 were somewhat harsh against the defendant. It is true that the application has been filed with delay, but Gurcharan Kaur died in the meanwhile and the application filed by her legal heir on February 18, 1987 was disposed of only on August 31, 1987."

The learned counsel for the petitioner submitted that there was absolutely no occasion for the defendant to make an application on August 31, 1987, for reviewing the order dated November 4, 1986. After the said date, the case was adjourned from time to time, but the defendant never approached the Court in that respect. It appears that meanwhile, the above said judgment had come in and taking the benefit thereof, the application was moved. According to the learned counsel, the said judgment was not applicable to the facts of the present case and that the whole approach of the trial Court was wrong and misconceived.

After hearing the learned counsel, I find merit in this revision petition. There was absolutely no occasion for the defendant to move the application for reviewing the earlier order dated November 4, 1986. Moreover, in the application filed, there was absolutely no reason given why the application could not be moved earlier. The mere fact that meanwhile, the plaintiff had died and his legal representatives were brought on the record was no reason to make the application. Bhim Singh''s case (supra), relied upon by the trial Court has absolutely no applicability to the facts of the present case. Of course, the Court which passed an order under section 35B of the Code, striking off the defence for nonpayment of costs, can recall review its order and/or extend time for payment of costs under section 151 and/or section 148, on sufficient cause being shown but such an application should be a bona fide one and should be filed immediately the impugned order is passed. Even for reviewing an earlier order there is some limitation prescribed. Even in the present case the said limitation had expired. Thus, from the facts and circumstances of the case, there was absolutely no occasion for the trial Court to review its earlier order dated November 4, 1986 after more than 10 months. The conduct of the defendant in this case speaks for itself. He is in possession of the suit land. Therefore, his whole effort is to delay the proceedings in the suit for one reason or the other.

Apart from that he moved an application under section 10 of the Code on November 29, 1986, for staying the proceedings in the suit as he had already filed a suit earlier on the same cause of action. The trial Court did not stay the proceedings, but directed that the final orders be not passed therein. That being so, the fate of the suit will depend upon the decision of the earlier suit filed by Karam Singh, defendant, in this suit.

In these circumstances, the revision petition succeeds and is allowed. The impugned order is set aside and the application for reviewing the earlier order is dismissed with costs. Since at the time of the motion hearing, the proceedings in the suit were stayed, the parties are directed to appear in the trial Court on February 15, 1989 for further proceedings.