Smt. Gurmail Kaur and others vs Smt. Manjit Kaur

Rajendra Nath Mittal, J.—This revision petition has been filed by the Defendants against the order of the Subordinate Judge 1st Class, Ludhiana, dated 2nd June, 1986.

Briefly the facts are that on 3rd March, 1986, the Defendants sought adjournment for filing the written statement which was given subject to payment of Rs. 10/- as costs and the case was adjourned to 17th March, 1986. On that date the Presiding Officer was on leave and the case was taken up on 19th March, 1986 on which date it was adjourned to 12th April, 1986 for filing the written statement. On 12th April, 1986 a further adjournment was sought by the counsel for the Defendants for filing the written statement which was granted on payment of Rs. 20/-. The costs which had been imposed earlier were not paid by the Defendants on that date. However, the costs of Rs. 20/- imposed were paid by them on the same date. The case was adjourned to 29th April, 1986 for filing the written statement The Plaintiff moved an application u/s 35-B of the CPC (hereinafter referred to as the Code) for striking off the defence in which notice was given to the Defendants on 29th April, 1986 and the case was adjourned for reply to 13th May, 1986.

The Defendants contested the application and pleaded that costs were not demanded by the Plaintiff nor the Court passed an order in that regard and, therefore, the defence could not be struck off. It is further pleaded that they were always ready and willing to pay the costs and it was the Plaintiff who refused to accept the same on 29th April, 1986 when these were offered to her. The learned trial Court accepted the application of the Plaintiff and struck off the defence of the Defendants. They have come up in revision to this Court.

The only question that arises for determination is whether the defence in the facts and circumstances of the case could be struck off by the Court. Mr. Hoshiarpuri, learned Counsel for the Petitioners, has vehemently argued that the Petitioners were ready to pay the costs and had offered the same on 29th April, 1986 He further submits that the Petitioners were not asked to pay the costs prior to the said date and consequently their defence could not be struck off. In support of his contention he places reliance on the Full Bench judgment of this Court in Prem Sagar v. Phul Chand (1983) 85 P. L. R. 797 (F.B.).

I have duly considered the argument but regret my inability to accept the same. It is not disputed that the costs of Rs. 10/- were imposed by the Court on the Petitioners on 3rd March, 1986. On that date the case was adjourned to 17th March, 1986. On that date the Presiding Officer was on leave and the case was listed before him on 19th March, 1986. On that date the case was adjourned to 12th April, 1986. The Court on 12th April, 1986 passed the following order:

Present.-Counsel for the parties. Written statement not filed. A date is requested. To come up for filing written Statement subject to payment of costs Rs. 20/-on 29.4.1986. Previous cost, not paid.

From a reading of the order it is evident that it was noticed by the Court that the Petitioners failed to pay Rs. 10/- as costs on 12th April, 1986. It is relevant to mention that on that date they paid Rs. 20/-as costs which were imposed on that very day. The learned Court, while dealing with the matter, observed that the Plaintiff-Respondent had asked for the previous costs which were awarded on 3rd March, 1986 on that date, i. e., 12th April, 1986 but the same were not paid. It is also evident from the order that the Court specifically mentioned that the previous costs had not been paid. Section 35-B of the Code provides that if on any date fixed for taking any step in the suit a party to the suit obtains an adjournment for taking such step, the Court may for reasons to be recorded make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party and the payment of such costs on the date next following would be the date of order shall be condition on precedent to the further prosecution of the defence by the Defendant, where the Defendant was ordered to pay such costs. From a reading of the section it is evident that if the Defendant fails to pay the costs on the date on which he is liable to pay the same, his defence can be struck off. In the present case, as already mentioned, the costs were to be paid on 17th March, 1986, but these could not be paid as the Presiding Officer was not present on that date in the Court. The case thereafter came up for filing the written statement on 12th April, 1986 on which date it was the duty of the Defendants to have paid the costs but these were not paid in spite of the fact that these were demanded. In the circumstances the Court was within its right to strike off the defence. It is true that the costs were offered on 29th April, 1986 but at that stage the Plaintiff was not bound to accept the same. The facts of Prem Sagar''s case (supra) are distinguishable and the Petitioners'' counsel cannot derive any benefit from the observations therein.

For the aforesaid reasons I do not find any merit in the revision petition and dismiss the same with costs. Counsel''s fee Rs. 200/-.