Surjit Singh and Another vs Raj Rani and Others

Surinder Singh, J.—This revision petition is directed against the order passed by the Subordinate Judge First Class, Ambala City, in a suit filed by Surjit Singh and another Petitioners against Shri Ram etc. Defendants (the former who is since deceased represented by his legal representatives) for the recovery of Rs. 8980/-.

The facts relevant for the purpose of the present Revision Petition may be briefly noticed. During the pendency of the above suit, when the matter was at the argument stage, an application was moved by the Petitioners on December 1, 1981 for permission to produce additional evidence. The application was dismissed with costs of Rs. 50/- and the case was adjourned to December P, 1981 for arguments On the said date, no costs were paid and the case was adjourned to December 18, 1981 for arguments On December 18, 1981 an application was filed on behalf of the Defendant Respondents that the suit of the Petitioners be dismissed u/s 35-B of CPC because the costs ordered against the Petitioners on December 2, 1981 had not been paid on the next date. The application was resisted by the Petitioners. After hearing the counsel for the parties, the trial Court accepted the application of the Respondents and debarred the Petitioners from prosecuting the suit. In fact, the suit itself was ordered to be dismissed.

At the time of motion hearing of the present revision petition, a preliminary objection was raised on behalf of the Respondents to the effect that the impugned order amounted to a decree and against such an order, a revision was not competent. The Learned Counsel for the Petitioners obtained an adjournment to check up if a decree sheet had been drawn by the trial Court in the case and also to obtain a certified copy thereof. On the adjourned date, Mr. Sarin Learned Counsel for the Petitioners stated at the bar that the application filed before the trial Court for obtaining a copy of the decree-sheet had teen returned with the report of the Copying Agency that no such decree sheet it forthcoming as the record. Another adjournment was obtained for the purpose of getting a decree-sheet prepared and obtaining its certified copy. As. the matter required consideration by a larger Bench, the revision petition was admitted to a Division Bench and this is now the case is before us.

On the question as to whether a revision petition was competent or not, Mr. M.L. Sarin Learned Counsel for the Petitioners has submitted that the present revision petition was directed against the order passed by the trial Court, disposing of the application filed by the Respondents with a prayer for dismissal of the suit u/s 35-B of the Code and this being so, there was no necessity for the Petitioners to impugn the order of dismissal of the suit which was only a consequential order, to the order passed on the above-mentioned application. After hearing the Learned Counsel for the parties, we find that the contention is indeed forceful. The trial Court appears to have passed a consolidated order, net only allowing the application filed by the Respondents but also dismissing the suit of the Petitioners in toto. Such an order is not sustainable. As already observed, no decree-sheet had been drawn by the trial Court and this fact is also obvious from the original application for copy filed by the Petitioners before the trial Court which has been produced before us for perusal. On the said application, there is a report of the Copying Agency that the decree sheet was not available, meaning thereby that the same had not been drawn. Apart from this fact, there can be no objection against the Petitioners impugning only the order passed by the trial Court on the application of the Respondents which order is not appealable as postulated under Order XLIII, Rule 1, Code of Civil Procedure. A revision against such an order was, therefore, compe�tent. The argument advanced by Mr J.S. Chawla, Learned Counsel for the Respondents that the impugned order had finally disposed of the suit and the same amounted to a decree against which only an appeal could be filed, is not tenable. The dismissal of the suit was only a consequential order and if the order passed by the trial Court on the application of the Respondents is legally sustainable, the con�sequential order would automatically fall. What is, therefore, re�quired to be seen is the legality and validity of the order passed on the application as aforesaid.

The trial Couit appears to have utilised the observations contained in a Full Bench decision of this Court in Anand Parkashv. Bharat Bhushan Raj (1981) 83 P.L.R. 555, to seek support for the proportion that the non�payment of costs ordered by the Court would entail penal conse�quences against the defaulting party. It did not, however, notice a subsequent Full Bench decision of this Court in Prem Sugar v. Phul Chand (1983) 85 P.L.R. 797, wherein the earlier Full Bench was distinguished and it was held at follows:

In the context of Section 35-B if on the date next following the date of the order of the payment of costs, the issue is not raised by either of the parties or taken notice of by the Court, and the sue is allowed to proceed further, it would follow that the party having the right to bar the further prosecution of the suit or the defence has waived its right. Thereafter it would not be possible to again exercise the ghost of the stringent provisions of Section 35-B at any and every subsequent date.

It is not disputed that after the passing of the order for costs, on the adjourned date, i. e. December 17, 1951, the costs were not paid. The matter regarding the payment of costs was however, not raised before or considered by the Court and the case was adjourned to December 18, 1981. In face of this situation, there was no justification for the trial Court to take the extreme step of dismissing the suit for non-payment of costs. The order to this effect is, therefore, patently illegal. The revision petition is accepted and the said order is set aside. As a necessary corollary, the dismissal of the suit is also not warranted. The case shall go back to the trial Court with the direction that it shall restore the suit at its original number and proceed to dispose of the same in accordance with law.

The parties, though their Learned Counsel have been directed to appear before the trial Court for further proceedings on April 23, 1984.

There shall be no order as to costs of the revision petition.

D.S. Tewatia, J.

I agree.

Revision petition accepted.