MUNSHI Vs. RAM KISHAN

JUDGEMENT

(1.) Ram Kishan filed a suit for declaration that he was in possession of the house in dispute. He also moved an application under Rules 1 and 2 of Order 39 of the Code of Civil Procedure (for short 'the Code') for an ad interim stay. A notice of this application was given to the defendant and the case was adjourned to October 20, 1982 for filing reply to the stay application. The defendant did not file the reply and sought an adjournment. The learned trial Judge granted this request and adjourned the case to October 28, 1982 for filing the reply to the above-mentioned stay application subject to payment of Rs 15/- as costs.

(2.) The learned trial Judge had proceeded on leave on October 28, 1982 and the case was adjourned to November 8, 1982. Both the parties appeared in the Court on October 28, 1982 and noted the orders adjourning the case to November 8, 1982 on that day. The learned trial Judge heard the arguments on the stay application and framed the issues in the main case and adjourned the case to November 10, 1982 for further proceedings. It may be mentioned here that neither the plaintiff-respondent demanded the costs nor the defendant- petitioner offered to pay them. It seems that this matter was not taken note of even by the learned trial Judge. So no question regarding payment of costs was raised on November 8, 1982 when the case was adjourned to the next date for hearing. Some time later on that day, that is, November 8, 1982, the plaintiff filed an application under section 35-B of the Code for barring the defendant from prosecuting his defence because he had failed to pay the costs.

(3.) The petitioner-defendant contested this application. However, the learned trial Judge found merit in the same and allowed it. He struck off the defence of the defendant. Aggrieved, the defendant has filed this revision petition under section 115 of the Code.