ASSA NAND Vs. HARISH KUMAR

JUDGEMENT

(1.) This revision petition is directed against the order of the trail Court dated Mar. 24, 1982, whereby it accepted the application filed on behalf of the defendants-respondents for the dismissal of the suit on the ground of nonpayment of costs for adjournment. Consequently, the suit of the plaintiff was dismissed.

(2.) The petitioner filed a suit for a declaration and permanent injunction against the defendants-respondents in the year 1979. On Feb. 6, 1981, no evidence of the plaintiff was present and an adjournment was requested which was allowed subject to the payment of costs of Rs. 30/- . The case was to come up thereafter for plaintiff's evidence on Mr. 26, 1981. The order of the trial Court dated March 26, 1981, reads,- "Present : Shri S. K. Sehgal, Advocate, counsel for the plaintiff: Shri Hari Kishan, defendant, (in person) . No evidence of the plaintiff is present. Summons received back unserved. A date is requested. Not opposed. To come up for defendant evidence on 16-5-1981 on P. F. As requested one set of summons be given dasti." The case remained pending and various dates were fixed from time to time. It was on Mar. 6, 1982, i. e. after about a year, that the respondents moved the application for the dismissal of the suit on the ground of non-payment of the costs on Mar. 26, 1981.

(3.) Notice of this application was given to the plaintiff, who filed his reply thereto on Mar. 9, 1982. It was pleaded therein that the costs imposed on him On Feb. 6, 1981, had been paid to the defendants' counsel on Mar. 26, 1981, but due to inadvertence. it was not mentioned in the interim order dated Mar. 26, 1981 that the costs had been paid to the defendants' counsel. It has also been further stated that had the costs of Rs. 30/- imposed on him on Feb. 6, 1981, not been paid to the defendants' counsel on Mr. 26, 1981, the defendants would not have allowed him to lead evidence and would have brought to the notice of the Court the non-payment of the costs. It is also relevant to note that meanwhile, the defendants' said counsel had died. The trial Court after hearing the learned counsel for the parties, came to the conclusion that the costs for the adjournment had not been paid because had it been paid, it would have been mentioned in the order dated Mar. 26, 1981. Thus, in view of the provisions of Section 35-B of the Civil P. C. (hereinafter called the Code), and the decision of this Court in Anand Parkash v. Bharat Bhushan Rai, AIR 1981 Punj and Har 269(FB), the application filed on behalf of the defendants was accepted. As a result. the suit of the plaintiff was dismissed. The concluding paragraph of the order, under revision reads,-- "Since the costs of adjournment have not been paid and keeping in view Section 35-B of the Civil P. C. read with Full Bench authority of our own Hon'ble High Court, the appellation of the defendants is liable to be accepted and, therefore, the suit of the plaintiff is liable to be dismissed. T, therefore, accept the application of the defendants. Consequently, the suit of the plaintiff is also dismissed. However, in view of the peculiar circumstances of the case, parties are left to bear their own costs. File be consigned to the record room." Aggrieved against the same, the plaintiff has come up in revision to this Court.