TARA CHAND Vs. STATE OF HARYANA

JUDGEMENT

(1.) 7th May, 1982 was fixed for plaintiff's evidence. No P. W. was present and the case was adjourned to 2nd June, 1982 for the plaintiff's evidence on payment of Rs. 35 as conditional costs. On 2nd June, 1982 no witness was present nor was served. The case was adjourned to 2nd August, 1982 and the responsibility of the plaintiff was fixed to bring witnesses. When the case was taken up on 2nd August, 1982, on behalf of the defendants an application was moved for closing plaintiff's case in view of section 35-B of the Civil Procedure Code, (hereinafter called the Code), for failure to pay the conditional cost of Rs. 35. When the case was initially taken up it was noted that the plaintiff did not bring any witness. The case was adjourned for reply to the application and for arguments thereon for 9th August, 1982. Soon thereafter a witness appeared who had been served but his statement was not recorded and he was discharged. Witness was discharged probably because the case was adjourned for reply and arguments on the application. Finally, on 11th August, 1982 the application, of the defendants was allowed and the plaintiff was disallowed to prosecute his suit any further. As a result, the suit was dismissed with costs. This is plaintiff's revision against the aforesaid order.

(2.) After hearing the learned counsel for the parties I am of the view that this revision deserves to succeed. The trial Court relied on Anand Parkash v. Bharat Bhushan Rai, 1981 AIR(P&H) 269 in deciding against the plaintiff but this decision was modified and explained in Prem Sagar v. Phul Chand, 1983 AIR(P&H) 385, and it was held that in case objection is not taken at the right opportunity, it would be deemed to have been waived and the point would not be allowed to be raised later on. Hence it will be deemed that on 2nd June, 1982, since objection was not raised on behalf of the defendants the right stood waived and later on the application could not be entertained. Moreover, on 2nd August, 1982 one of the witnesses appeared and he was discharged not because the plaintiff refused to tender the costs but for the reason that the case was adjourned to consider the application fired by the defendant under Section 35-B of the Code. Hence the impugned order cannot be sustained.

(3.) For the reasons recorded above, the revision allowed, the order of Court below dated 11th August, 1982 is hereby set aside and the matter is remitted to the trial Court to permit the plaintiff to lead their evidence and before the statement of witness is recorded, the plaintiff will have to pay the additional costs of Rs. 35 which were imposed on 7th May, 1982, Parties are left to bear their own costs.