Rajesh Kumar vs Amit Kumar

Gurmeet Singh Sandhawalia, J.

Challenge in the present revision petition, filed by the petitioner plaintiff, is to the order dated 31.072014, passed by the Civil Judge (Jr. Divn.) Jalandhar, whereby the application for reviewing the orders dated 15.11.2013, 09.12.2013 and 17.12.2013, stands dismissed. Vide the said order, the Trial Court had noticed that last opportunity was given to conclude the entire evidence and costs of Rs. 300/- was imposed upon the plaintiff on 15.11.2013 and the case had been adjourned to 09.12.2013 but the costs were not deposited and the evidence of the plaintiff was closed. It was noticed that eight opportunities were given from 26.032013 to 09.12.2013 for conclusion of the evidence. It is a matter of fact that not even one witness was examined for a period of 1 1/2 years.

Counsel for the petitioner has vehemently submitted that since an application for amendment had been filed on 15.11.2013, therefore, the plaintiff-petitioner was under the impression that firstly the same has to be decided.

After hearing counsel for the petitioner, this Court is of the opinion that there is no scope for interference in the present revision petition. Admittedly, on 15.11.2013 also, costs of Rs. 300/- were ordered to be deposited by the Trial Court. The order passed on 09.12.2013 was on account of the fact that the plaintiff had failed to deposit the said costs and therefore, evidence was closed by order. The case was, thereafter, fixed for 17.12.2013 and even the defendant closed his evidence.

Counsel for the petitioner submits that since the issue is regarding reviewing of the orders and recovery of money, the petitioner would be prejudiced and therefore, submits that he is willing to pay exemplary costs.

Though the argument is attractive but it cannot be accepted. A Full Bench of this Court in Anand Parkash Vs. Bharat Bhushan Rai and Another, , while considering the provisions of Section 35B C.P.C., held that the provision is mandatory and a condition precedent for further proceedings. Relevant observations read as under:

"12. It was contended by Mr. Goel, learned counsel for the respondent, that though word ''shall'' has been used in the Section but by user of that word the power of the Court for granting more time for paying the costs is not taken away. I am afraid, I am, unable to agree with the contention of the learned counsel for the contention of the learned counsel for the respondent. There might have been some merit in the contention of Mr. Goel if the word ''shall'' had been used alone as in that event the judgment cited for the proposition that mere use of word ''shall'' may not make a statute mandatory, would have been of some relevance. But in the instant case, a bare scrutiny of the provisions of Section 35B would show that the Legislature had made its intention absolutely clear and beyond the pale of any doubt that the provision are mandatory in nature and any non-compliance with the same would result in penal consequences as envisaged therein. When the provision 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 provision 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 grated on payment of costs, then on the next date of hearing the party who sought adjournment, 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 parry 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 on the other side. He does 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 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. If 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 as 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 if 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."

Once the costs were not paid, there was no other option left with the Trial Court but to close the evidence of the plaintiff-petitioner by order. The argument that amendment application was pending, is also without any basis since, admittedly, the order imposing costs was passed on the same day and the costs should have been deposited. Thereafter only, the Court would consider the application for amendment. In such circumstances, no fault can be found in the well reasoned order passed by the Trial Court and the same does not warrant interference by this Court under Article 227 of the Constitution of India. Accordingly, the present revision petition is, hereby, dismissed.