NARAYAN RAO Vs. STATE OF M P

JUDGEMENT

(1.) THIS is a revision by the plaintiffs against the order by which "further proceedings in the suit have been terminated" purporting to act under Section 35-B, CPC.

(2.) THE plaintiffs had instituted Civil Suit No. 14-A of 1986 on 2-8-1986 for declaration and permanent injunction. After framing of issues some evidence was recorded. That suit was fixed for the plaintiffs' remaining evidence on 29-8-1992. On that date the plaintiffs submitted an application for adjournment and that was allowed subject to payment of Rs. 150/- as costs. No date was specified upto which this cost was to be paid. The case was adjourned to 9-10-1992. On that date the plaintiffs' five witnesses were present Their names are noted in the order-sheet. Their evidence could not recorded as the Court was busy in another case. The witnesses were bound over for the next date i. e. , 1-12-1992 but they did not appear and therefore bailable warrants were ordered to be issued against them. The case was fixed on 11-1-1993. On this date the witnesses were absent. The plaintiffs submitted an application under Order 6 Rule 17, CPC for amendment in the plaint on that date. The case was adjourned for its reply. It was recorded that the costs of Rs. 150/-imposed on 29-8-1992 have not been paid and the case will proceed further on payment of this amount. On 31-3-1993 the plaintiffs' Counsel expressed inability to pay the costs as plaintiff Narain Rao who was aged about 85 years was not present in the Court. It was stated on behalf of the defendant Nos. 4 to 7 that the suit "should be dismissed". The Court fixed the case on 16-4-1993 for hearing the learned Counsel for the parties on that point. The plaintiffs' Counsel offered to pay the costs on that date but the defendants' Counsel refused to accept it on the ground that the case was not fixed on that date for payment of costs. On 17-4-1993 the suit was dismissed with the note "further proceedings are terminated".

(3.) SECTION 35-B (1), CPC introduced by the Code of Civil Procedure (Amendment) Act, 1976 is as under:-