SARUPI DEVI AND OTHERS Vs. GURCHARAN SINGH

JUDGEMENT

(1.) This petition is directed against the order of the trial Court dated 1st September, 1982 whereby an application filed by the petitioners for dismissal of the suit of the respondent in terms of section 35-B of the Code of Civil Procedure for not complying with the order of that Court dated 19th April, 1982 has been dismissed. The following facts are not in dispute.

(2.) On 19th April, 1982, the trial Court granted time to the plaintiff- respondent to bring on record the legal representatives of deceased Ram Jas, defendant in the suit, subject to the payment of Rs. 15/- as costs. The case was adjourned to 19th May, 1982. Since that day was declared as a holiday on account of the General Elections in the State, the case was not taken up on that date. On the next following day, i.e. 20th May, 1982 when, according to the petitioners, they were not present in Court, the case was adjourned to 22nd July, 1982 for serving the newly-added defendants, i.e. the legal representatives of Ram Jas deceased. On 22nd July, 1982, the petitioners filed the present application praying that since the respondent-plaintiff had failed to pay the costs by that date, the suit should be dismissed. This prayer of the petitioners, as already indicated, has been declined by the lower Court on the grounds that firstly on 20th May, 1982, the suit had been taken up only for passing proper orders and on that day no effective order could be passed to the prejudice of either of the parties and, secondly, the non-payment of costs by the respondent cannot be held to be "intentional or wilful''. The Court also observed that on 22nd July, 1982, the respondent-plaintiff tendered the costs for payment to the petitioners but their counsel refused to accept the same. He instead filed the present application. Though Mr. Sullar, the learned counsel appearing for the petitioners, contests the correctness of the later-mentioned fact relating to the tendering of the costs for payment to them yet I see no weight in the same in the light of the precise observations made by the lower Court in this regard. Mr. Sullar next seeks to contend in the light of the observations of the Full Bench of this Court in Anand Parkash v. Bharat Bhushan Rai, 1981 AIR(P&H) 269, that the provisions of section 35-B of the Code of Civil Procedure being mandatory in nature and the respondent having failed to pay the costs by 22nd July, 1982, the lower Court should have disallowed the prosecution of the suit by the plaintiff and dismissed the suit. While making this submission, the learned counsel appears to be oblivious of the observations of a later Full Bench of this Court in Prem Sagar v. Phul Chand, 1983 2 RCR(Rent) 405, wherein after explaining the ratio of the earlier Full Bench judgment in Anand Parkash's case it has been ruled out that where in a suit, a party which is entitled to receive the costs does not ask for the same on the date next following the date of the order vide which the costs had been awarded would be taken to have impliedly waived its right of having the costs and to bar further prosecution of the suit. Faced with this enunciation of law by the Full Bench, Mr. Sullar takes the stand that neither 20th May, 1982 can be taken to be a date of hearing in the suit of an effective date, as he wants to call it, nor were the petitioners or their counsel under any obligation to appear in Court on that date and, thus, they cannot possibly be taken to have impliedly waived their right of demanding the costs from the respondent. This stand of Mr. Sullar is again devoid of merit.

(3.) Rule 4, Chapter 1-K, Volume I of the High Court Rules and Orders provides that whenever on account of the occurrence of an unanticipated holiday or in the event of the Presiding Officer of a Court being absent owing to sudden illness or other unexpected cause, cases fixed for the day in question are not taken up, these shall be deemed to have been automatically adjourned to the next working day when the Presiding Officer is present and it shall be the duty of the parties or their counsel (but not the witnesses) to attend the Court on that day. The later part of this rule further entitles the Presiding Officer to fix the next date of hearing in the suit. In the light of this provision it is difficult to accept the stand of the learned counsel for the petitioners that his clients were under no obligation to appear in the Court on 20th May, 1982, i.e., the date next following the date fixed in the suit, i.e., 19th May, 1982, which had been declared to be a public holiday. So it was for the petitioners to be present on that day, i.e., 20th May, 1982 and ask for the costs.