Smt. Devi Bai vs Sh. Gurbachan Singh

M.L. Singhal, J.—Vide order dated 28.5.1982 plaintiffs suit was dismissed by the Subordinate Judge, Ist Class, Karnal in view of the provisions of Section 35-B of the CPC while allowing respondent-defendants application filed u/s 35-B read with Section 148 of the CPC seeking dismissal of the suit on account of non-payment of adjournment costs. It was a suit filed by Smt. Devi Bai against Gurbachan Singh in forma pauperis for the recovery of Rs, 8400/- on the basis of pronote and receipt. For 17.4.1982. case was posted for statement of Hand-writing and Finger Print Expert in evidence of the plaintiff. On 17.4.1982 plaintiff''s evidence was not present. Hand-writing and Finger Print Expert could not be served for 17.4.1982. Adjournment was sought by the plaintiff on the under taking that he be given one. adjournment of a short duration and on the adjourned date, he will examine the Hand-writing and Finger Print Expert on his own responsibility and in case, he was not able to examine the Hand-writing and Finger Print Expert, his evidence be deemed as closed.

Subordinate Judge adjourned the case for evidence on payment of Rs.30/- as costs for 27.4.1982. On 27.4.1982 no evidence of the plaintiff was present nor did he pay costs of adjournment granted in him on 17.4.1982. Plaintiffs evidence as closed. On the following day i.e. 28.4.1982 defendant moved application saying that since the plaintiff had failed to pay the costs of adjournment granted to him on 17.4.1982 which was to be paid on 27.4.1982, plaintiffs suit be dismissed u/s 35-B of the CPC as the adjournment had been granted to the plaintiff on 17.4.1982 for producing his evidence conditionally on payment of costs and payment of costs was a condition precedent to the further adjournment of the case, the grant of which was in the discretion of the court.

This application was opposed by the plaintiff urging that the counsel for the plaintiff had assured the counsel for the defendant that costs would be paid to him after 11.00 AM as plaintiff was to withdraw the amount from the bank and counsel for the defendant had accepted this request of the plaintiff''s counsel and it was only then the case was fixed for evidence in rebuttal by the defendant. It was further alleged that despite effort, plaintiff could not trace the counsel for the defendant for paying them the amount of costs and when on 22.5.1982 i.e. the date fixed For the rebuttal evidence of the defendant, counsel for the plaintiff offered Rs.30/- to the counsel for the defendant, he refused to accept the payment of costs.

Subordinate Judge, Ist Class, Karnal allowed this application and in consequence dismissed plaintiff''s suit in view of provisions of Section 35-B of the Code of Civil Procedure.

I have heard the learned counsel for the parties.

Anand Parkash Vs. Bharat Bhushan Rai and Another, relied upon by the trial Court laid down the following principle:-

"In the event of party failing to pay the costs on the date fixed following the date of the order imposing costs, it is mandatory on the Court to disallow the persecution of the, suit or the defence as the case may be, No other extraneous consideration would weigh with the Court in exercising its jurisdiction against the delinquent party. However, in case, where costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power u/s 148 of the Code in favour of the defaulting party, if a strong case is made out.

In this case the provisions of Section 35-B of the CPC could not have been invoked for the dismissal of the suit of the plaintiff.

" Costs for causing delay-

(1)- If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-

(a)- fails to take the step which he was required by or under this Code to take on that date, or

(b)- obtains an adjournment for taking such step or for producing evidence or on any other ground,

The Court may, for reasons to be recorded, make an order requiring such party to pay to the other party costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in, respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of -

(a)- the suit by the plaintiff, where the plaintiff was ordered to pay such costs.

(b)- the defence by the defendant, where the defendant was ordered to pay such costs.

Explanation.- Where separate defences have been raised by the defendants or groups of defendants payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.

(2)- The costs, ordered to be paid under Sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons,"

In this case, the Court gave no finding that plaintiff was causing delay in the disposal of the suit. In para 2 of the impugned order, the Court has observed that both the parties have led evidence. On 17.4.1982 the case was fixed for recording statement of Hand-writing and Finger Print Expert in the evidence of the plaintiff but no evidence was produced. On the request of counsel for the plaintiff that if he was granted adjournment of a shorter duration, he would produce Hand-writing and Finger Print Expert at his own expense and if he failed to do so, his evidence be deemed as closed. Adjournment was opposed. In the interest of justice, one adjournment, was granted subject to payment of Rs.30/- as costs. Case was adjourned to 27.4.1982. On 27.4.1982, Handwriting and Finger Print Expert was not present and the costs of adjournment were also not paid and as such evidence of the plaintiff was closed and the case was posted for rebuttal evidence of the defendant. Before involving the provisions of Section 35-B of the Code of Civil Procedure, Court should have given finding that the plaintiff was causing delay in the disposal of the suit. No such finding was recorded by the Court that the plaintiff was causing delay. In this case, Court should not have invoked the provisions of Section 35-B of the CPC which are penal in character and dismissed the suit. Court should have considered at-least that much evidence which the plaintiff had produced. Court should not have brushed aside that evidence and dismissed the suit without considering it. Rules of procedure are hand maid of justice. Procedure is meant to advance justice and not to impede justice. Court should have in its discretion allowed opportunity to the plaintiff to produce his evidence.

So, this revision is allowed, order dated 28.5.1982 is set aside and the trial Court is directed to allow opportunity to the plaintiff to produce her evidence on payment of Rs.500/- as costs. Plaintiff shall pay the costs imposed upon her by the Court while adjourning the case on 17.4.1992 as well. The Court shall dispose of the suit on merit after evidence is led by both the parties.