Santro vs Rajwanti

S.D. Agarwala, C.J.—This revision petition is directed against an order of the Subordinate Judge, First Class, Hansi, dated June 10,1987.

The brief facts of the case are that the plaintiffs evidence had been concluded and the case was adjourned subject to the payment of Rs. 50/- as costs, but on June 10, 1987, for which date the case was adjourned, the costs were not paid. In the circumstances, the trial Court dismissed the suit for non-payment of costs. It is this order which is the subject to challenge in this revision petition. 3. Learned counsel appearing for the revision petitioner has contended that even if the costs have not been paid, the suit could not be dismissed. He has relied upon a Full Bench decision of this Court in Prem Sagar v. Phul Chand (1983)85 P.L.R. 797 (F.B.). In that case, the Full Bench has categorically laid down after interpreting Section 35B, Code of Civil Procedure, that the resultant effect of the default on the date next following the date of the order of payment of costs would be that there after the defaulting party can no longer be permitted to add anything to its case. The case consequently would have to be decided on the limited material and evidence existing on the record in favour of such a party. The section does not in terms prescribe that either the suit must be dismissed or that the defence be struck down as a whole.

The principle laid down in the above said Full Bench case is fully applicable to this case. The trial Court erred in dismissing the suit itself. The only course open to the trial Court was, to decide the case on the material already existent on the record, but not to dismiss the suit on account of non-payment of costs.

The learned counsel for the respondent has relied upon another Full Bench decision of this Court in Anand Parkash v. Bharat Bhushan Rai (1981)83 P.L.R. 555 (F.B.). In that case also, the principle laid down is that in the event of the party failing to pay the costs on the date next following the date of the order imposing costs, it is mandatory on the Court to disallow the prosecution of the suit or the defence, ac the case may be, but it is not held that the said shall be dismissed or the defence struck off, of non-payment of costs.

In the circumstances, the revision petition is allowed. The order dated June 10,1987, is hereby set aside. The plaintiff-petitioner is permitted to deposit the costs on October 4,1993, when the parties shall appear before the trial Court for further prosecution of the suit. In case the costs are deposited, the suit will be decided on the material already available on the record. The parties shall appear before the trial Court on October 4,1993.