ROOR SINGH Vs. RAGHBIR SINGH

JUDGEMENT

(1.) THIS revision petition challenges the order dated 21.8.2000 passed by the Civil Judge (Junior Division), Amritsar dismissing the application of the plaintiff-petitioner filed under Section 35-B of the Code of Civil Procedure, 1908 (for brevity the code) for striking off the defence of the defendant-respondents on their failure to have paid costs.

(2.) BRIEF facts of the case are that the plaintiff-petitioner has filed a Suit No. 77 of 1990/1999 instituted on 9.3.1990/26.2.1999 for declaration to the effect that he is sole legal heir by inheritance of one Bhagat Singh son of Chet Singh to the extent of 1/4th share out of the suit land. When the suit was fixed for evidence of defendants on 20.12.1999 the defence evidence was not present and cost of Rs. 200/- was imposed for their failure to produce evidence and the case was adjourned to 17.1.2000 subject to payment of Rs. 200/- as costs. On 17.1.2000, the following interlocutory order has been recorded by the Civil Judge :

(3.) I have heard Shri Munish Kamboj, learned counsel for the plaintiff- petitioner and Shri Paramjit Kalia, learned counsel for the defendant- respondents. Mr. Kamboj has argued that the order dated 17.1.2000 passed by the Civil Judge cannot be construed to mean that non-payment of costs was not raised. According to the learned counsel once the order reflects non-payment of costs it shall be deemed that cost was demanded by the plaintiff- petitioner and still it was not paid. Therefore, the defence of defendant- respondent from that date onwards should have been struck off.