DINESH SINGLA Vs. SUREKHA SINGLA

JUDGEMENT

(1.) THIS revision petition raises the question as to whether the suit of the petitioner-plaintiff is liable to be dismissed if he has failed to deposit the amount of costs imposed on the previous date of hearing.

(2.) THE present petition is directed against the order dated 1.8.2001 passed by Civil Judge (Junior Division), Moga. The petitioner-plaintiff has instituted a suit on 5.4.1999 for permanent injunction with a prayer that respondent-defendants be restrained from alienating the land including structures thereon and disposing of the property of the company without the authority of law. The suit has come up to the stage of evidence of the petitioner-plaintiff after the pleadings were complete. On 1.8.2001, the case was fixed for evidence of the petitioner-plaintiff which was subject to payment of costs of Rs. 200/-. The learned counsel in the trial Court appearing for the petitioner-plaintiff expressed his inability to pay the costs and requested for deferment of hearing. It was in these circumstances that the Civil Judge recorded the order closing the evidence of the petitioner-plaintiff and proceeded to dismiss the suit for want of evidence and for non-payment of costs. The impugned order dated 1.8.2001 reads as under :-

(3.) ON the other hand, Shri M.K. Garg, learned counsel for the respondent- defendants argued that provisions of Section 35-B of the Code are mandatory in character and once the costs imposed on a previous date of hearing has not been paid, there is no option left with the Court except to proceed in accordance with the procedure laid down in Section 35-B of the Code which postulates that the payment of costs is a condition precedent for further prosecution of the litigation by the delinquent party. In support of his contention, the learned counsel has relied on a Full Bench judgment of this Court rendered in the case of Anand Parkash v. Bharat Bhushan Rai and others, 1982(1) RCR (Rent) 1 (P&H)(FB) : (1981) 83 P.L.R. 555 (F.B.). He further argued that once the petitioner-plaintiff has failed to impart full instructions to his counsel and the counsel pleads no instructions then the blame squarely lies on that party and it cannot be argued by the delinquent party that it was prevented from appearing in Court due to any sufficient cause because there is no provision in the Code for giving a fresh notice to the party which is already represented by a counsel. For this proposition the learned counsel relied on Order 9, Rule 13 of the Code and a Division Bench judgment of this Court in case of Suresh Kumar v. Smt. Daryai and others, (1996-3) 114 P.L.R. 379.