MANOHAR SINGH Vs. D S SHARMA

JUDGEMENT

(1.) Leave granted. Heard learned counsel.

(2.) The appellant filed a suit for damages against his erstwhile employer-National Thermal Power Corporation Ltd. ('NTPC' for short, second respondent herein) and its then General Manager in the District Court, Delhi. After conclusion of Plaintiff's evidence, the defendants' evidence was commenced. On 6.1.2004 the suit was listed for further evidence of defendants. One S. Joseph, (DW 2), whose affidavit had been filed by way of an examination-in-chief, was present in court for being cross-examined by the plaintiff. The plaintiff requested for an adjournment on the ground that his counsel was busy elsewhere. The case was therefore adjourned to the next day (7.1.2004). Again, plaintiff sought time on the ground that his counsel was otherwise busy. When the court asked the plaintiff to cross-examine the said witness, as he had earlier cross-examined DW-1 without the assistance of a counsel, plaintiff refused to do so. The witness had come all the way from Durgapur for giving evidence. The court therefore adjourned the matter to 9.2.2004, subject to payment of costs of Rs. 5000 by the plaintiff. On 9.2.2004 also, S. Joseph (DW-2) was present, but the plaintiff sought an adjournment on the ground that he wanted to move an application for transfer of the suit. The request for adjournment was opposed on the ground that the witness had come from Durgapur by air. The suit was however adjourned to 9.3.2004. On 9.3.2004, plaintiff submitted that he had already moved an application for transfer (alleging that he had lost faith in the Presiding Officer). The suit was adjourned to 7.4.2004. The suit was thereafter adjourned to 20.7.2004, 31.8.2004, 5.10.2004, 10.11.2004, 17.1.2005, 23.2.2005, and 7.4.2005 on the ground that the transfer application filed by the plaintiff was pending before the District Judge.

(3.) On 24.3.2005, the transfer petition filed by the plaintiff was allowed and his suit was withdrawn from the file of Shri O.P. Gupta, Addl. District Judge and assigned to the file of another Additional District Judge, with a direction to the parties to appear on 1.4.2005. On that day, the new trial Judge directed the plaintiff to deposit Rs. 5,000 towards the travel expenses of DW-2 before he could cross-examine DW2. The matter was adjourned to 27.4.2005. On 27.4.2005, the plaintiff filed an application for waiver of costs. That application was dismissed and the case was posted to 27.7.2005 for further evidence. On 27.7.2005, the plaintiff failed to deposit the costs. The court recorded that costs were not paid in spite of repeated opportunities. Relying upon Section 35B of the Code of Civil Procedure (for short 'the CPC'), the trial court dismissed the suit for failure to pay the costs in spite of several opportunities. The said dismissal order dated 27.7.2005 was challenged by way of a revision before the Delhi High Court. The High Court dismissed the appeal by order dated 21.5.2007. It upheld the decision of the trial court holding that the provisions of section 35B were mandatory and if the costs levied were not paid "the only course open to the court is to disallow the prosecution of the suit" and, that meant the dismissal of the suit. Appellant's petition for review was dismissed on 7.9.2007. The orders dated 21.5.2007 and 7.9.2007 are challenged in these appeals by special leave.