SAHIRAM Vs. YADRAM

JUDGEMENT

(1.) The present revision petition has been filed under Article 227 of the Constitution of India challenging the order dtd. 27/5/2022 (Annexure P-3) whereby the application filed by the plaintiff-petitioner for striking off the defence of defendant-respondent No.1 for non-deposit of the costs has been dismissed.

(2.) The brief facts relevant to the present lis are that an application was filed by the plaintiff-petitioner under Order 39 Rule 2-A read with Sec. 151 of the Code of Civil Procedure, 1908 (CPC) in the proceedings. On 27/2/2019 PW3-Hoshiyar Singh, PW4-Nonihal Singh and PW5-Lal Chand were present for their examination-in-chief. Their cross-examination was deferred as counsel appearing for defendant-respondent No.1 submitted that he was busy before other Court and the witnesses were discharged and bound down for 11/3/2019 subject to payment of costs of Rs.200.00 each to be paid by defendant-respondent No.1 to the witnesses. Thereafter, on the next two dates i.e. 11/3/2019 and 29/3/2019, the file was not taken up as the learned Magistrate was on casual leave. On 15/5/2019 PW5-Lal Chand was present and examined without any objection being raised by learned counsel appearing on behalf of the plaintiff-petitioner therein. The remaining witnesses did not come present despite being bound down. However, it is noticed in the order dtd. 15/5/2019 that the costs would be paid on the next date of hearing. On 26/7/2019 no PW was present and the matter was adjourned to 9/9/2019 for evidence of the plaintiff-petitioner. Costs were also to be paid on that day. Yet again on 9/9/2019 no PW was present and the counsel for the plaintiff-petitioner closed his evidence with a request to tender documentary evidence and the matter was thereafter adjourned to 25/9/2019 for tendering documentary evidence. Vide order dtd. 25/9/2019 the case was adjourned to 19/10/2019 for evidence of the defendant-respondents at their own responsibility. On 19/10/2019 an application was filed by the plaintiff-petitioner for striking-off the defence of the defendant-respondent No.1 for non-payment of costs. Reply to the said application was filed. The Trial Court vide a detailed order dtd. 27/5/2022 dismissed the said application. Hence, the present revision petition.

(3.) Learned counsel for the plaintiff-petitioner would contend that payment of costs was a condition precedent and hence, defence ought to be struck off. Learned counsel for the plaintiff-petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of Manohar Singh Vs. D.S. Sharma and Anr. [2010 (1) SCC 53] to contend that the payment of costs is a condition precedent.