JAGAR SINGH AND ORS. Vs. BALDEV KAUR

JUDGEMENT

(1.) BALDEV Kaur, through her next friend Kiran Mai, stated to be deaf and dumb filed suit for possession against Jagar Singh and others, which was dismissed in default. An application for restoration of the suit was made, which was allowed and the suit was restored to its original number vide order dated 12.2.1996 of Civil Judge, Junior Division, Sunam. Jagar Singh and others have come up in revision to this Court against the order dated 12.2.96.

(2.) LEARNED counsel for the petitioner submits that plaintiffs suit was dismissed under Section 35B of the Code of Civil Procedure on account of non -payment of costs. Against an order of dismissal of the suit on account of non -payment of costs under Section 35B, appeal lies as the dismissal of the suit under Section 35B is a "decree" as defined in the Code of Civil Procedure. In support of this submission, he has drawn my attention to Budhulal Kasturchand v. Chhotelal and Ors., : AIR 1977 MP 1 where it was held that "an order dismissing a suit for default in payment of costs is appealable as a decree. The word "default" in Section 2(2) of the Code refers only to non -appearance of parties as specifically referred to in Order 9 and in Order 17 Rule 2 CPC. It does not include any other default." Buthulal's suit was dismissed because he did not deposit or pay, within the time fixed by the Court, adjournment costs imposed on him on the preceding date of hearing. On the date of hearing, on which the trial court dismissed the suit, the plaintiff had offered the amount of adjournment costs, which he had to pay. But the trial court found itself powerless to extend time in as much as the plaintiff had been directed on the preceding date to pay adjournment costs before the next date of hearing and that order was preemptory; suit shall stand dismissed on non -payment of costs. Plaintiff appealed from the order of dismissal of his suit. The learned District Judge held that the appeal was not maintainable in as much as the order of the trial court was not a decree. The plaintiff then preferred this second appeal. It was heard by a learned single Judge, who found that the law was not certain because the authorities were not uniform or consistent on the question whether the Court has power to extend time for depositing costs in spite of the order imposing costs being pre -emptory. Learned Single Judge referred the matter to a larger Bench for the decision of the following questions: -

(3.) IT is submitted that the suit was dismissed for non -payment of costs subject to adjournment for filing replication. On 7.8.95, replication was not filed. Adjournment was requested and was granted subject to payment of Rs. 100/ -. On 22.8.95, cost was not paid. Plaintiff was not ready to pay cost. Plaintiffs suit was dismissed for want of prosecution under Section 35B CPC. He has drawn my attention to Lakhmi Chand & Sons v. Parmancmda Khemka & sons, 1996(3) R.C.R. 234 where it was held that "where the plaintiff is not willing to pay costs despite adjournments, trial court has no option but to dismiss the suit and cannot permit further prosecution of suit. An order of dismissal of suit for non -payment of costs imposed under Section 35B CPC is appealable under Section 104(1)(ff) of the Code of Civil Procedure where appeal is provided, no revision petition can be entertained." He submits that no revision lay against the impugned order instead appeal lay before the District Judge.