Smt. Lachhmi and others vs Nirmal Singh and others

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court dated January 8, 1982, whereby the application filed on behalf of the defendants-respondents u/s 35-B of the CPC (hereinafter called the Code) was allowed and the plaintiff was debarred from prosecuting the suit on account of non-payment of costs on December 10, 1981.

The plaintiff''s case was fixed for evidence in the trial Court on December 3, 1981. On that day, the same was adjourned on payment of costs of Rs. 30/- for December 10, 1981 On December 10, 1981, it was again adjourned to December 19, 1981, as it was represented by the parties that efforts for a compromise were being made, and under the circumstances, the costs of Rs. 30/- were not paid. On December 19, 1981, the defendants-respondents moved an application u/s 35-B of the Code to the effect that since the plaintiff had failed to pay the costs on the last date of hearing, i.e., December 10, 1981, bis suit should be dismissed on that ground alone. That application was resisted on behalf of the plaintiff and it was pleaded that the counsel for the defendants did not appear and only the clerk or a junior of the counsel had put in appearance on that date and that he (the plaintiff) was ready to pay the costs on that very day and further that he was ready to make the payment even afterwards. However, the trial Court after hearing the learned counsel for the parties, relying upon the Full Bench decision of this Court in Shri Anand Parkash v. Shri Bharat Bhushan Rai (1981) 83 P.L.R. 555, accepted the application and debarred the plaintiff from further prosecuting the suit. Dissatisfied with the same, he has come up in revision to this Court.

The learned counsel for the petitioner, contended that the petitioner was always willing to pay the costs, but the same could not be paid on December 10, 981, as the talk of compromise had started between the parties and the case was adjourned for that purpose, on that date, for December 19, 1981. In any case, according to the learned counsel, he (the plaintiff) was prepared to pay the costs on December 19, 1981, and, therefore, the ratio of the above-said Full Bench case was not applicable to the facts of the present case. On the other hand, the learned counsel for the respondents contended that it was the duty of the plaintiff to pay the costs on the date fixed, i.e., December 10, 1981. He having failed to pay the costs on that date, his suit was liable to be dismissed in view of the ratio of the Full Bench decision of this Court in Anand Parkash''s case (supra).

After hearing the learned counsel for the parties at a great length, I am of the considered opinion that neither the provisions of section 35-B of the Code could be invoked, nor the interpretation as placed by the trial Court on the ratio of the Full Bench decision of this Court in Anand Parkash''s ease (supra), was warranted in the present case. In paragraph 15 of the judgment recorded by Jain, J, it has been made clear that in case the act of non-payment of costs is not intentional and wilful attempt to disregard the order of the Court, then the Court may not impose the extreme penalty on a delinquent. It has further been held that if a party is prevented from making payment of the costs for the reasons beyond his control and a request is made for extension of time for making payment, then the Court may exercise its discretion and allow more time to the delinquent to make the payment of costs and the extreme penalty as provided in the section may not be imposed on the date on which costs are to be paid It has also been observed that it does not estop the Court from taking note of the events and circumstances which have happened before the payment is to be made In the present case, admittedly, the case was adjourned for December 19, 1981, for compromise. Under the circumstances, the non payment of costs on December 10 1981, could not be said to be intentional or a wilful attempt to disregard the order of the Court. Moreover in the above-mentioned Full Bench decision of this Court, the delinquent had refused to pay the costs awarded on the date fixed and the other party had moved the Court inter alia for proceeding against the delinquent u/s 35 B of the Code This prayer was not accepted and the trial Court had proceeded with the suit. Aggrieved against the same, a revision petition was filed in this Court which cams up for hearing before the Full Bench on a reference. The question before the Full Bench was whether it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be, any further in the event of the party failing to pay the costs on the date fixed following the date of the order imposing the costs. Answering this question, it was held by the Full Bench that in the event of the party failing to pay the costs on the date next following the date imposing the costs, it was mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be, and that no extending considerations should weigh with the Court in the exercise of its jurisdiction against the delinquent party. At the same time, it was also observed that where the 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 powers u/s 148 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction. Thus, in the Full Bench decision of this Court in Anand Parkash''s case (supra), (majority view), it was never laid down that in case the costs are not paid by the delinquent party on the date next following the date of such order and the Court is allowed to proceed further with the suit by the other party without drawing its attention to the provisions of section 35-B of the Code, the other party may invoke the same on any subsequent date. As a matter of fact, this was never the point before the Full Bench in the afore-mentioned case, nor it was ever agitated before it therein. Therefore, the application of the ratio of the above-mentioned Full Bench decision of this Court to such circumstances as in the present case, is misconceived and unwarranted. The correct interpretation of that case appears to be that in case the delinquent party refuses to pay or does not pay the costs on the date next following the date of such order, such a party must be proceeded against u/s 35-B of the Code Whether such party can be proceeded against u/s 35-B of the Code at any time subsequent to the date of the non-payment of the costs awarded, by the Court, was never the question before the Full Bench in the above said case. It is thus, quite clear that the trial Court has misinterpreted the ratio of the Full Bench decision of this Court in Anand Parkash''s case (supra), in invoking the provisions of section 35-B of the Code, to the facts of the present case, and has, therefore, acted illegally and with material irregularity in the exercise of its jurisdiction resulting in failure of justice.

As a result of the above discussion, this revision petition succeeds and is allowed The impugned order of the trial Court is set aside Now, it will proceed with the suit of the plaintiff in accordance with law The parties through their counsel, have been directed to appear in the trial Court on August 30, 1982 No costs.