RAJ KUMAR Vs. GIRDHARILAL

JUDGEMENT

(1.) This petition is directed against the order of the trial Court dated 16th Aprl. 1986 whereby the suit was dismissed under S.35-B of the Civil P.C. for nonpayment of costs of Rs. 15/-.

(2.) The plaintiff-petitioner filed a suit for a decree of permanent injunction restraining defendant Girdhari Lal from asserting any right, title or interest on motor-cycle No. PNC- 8072 or taking possession thereof except in due course of law. The suit was filed on 18th Jan. 1986. On 20th Mar. 1986 the defendant moved an application for an order directing the plaintiff to hand over the motor-cycle to him. Notice of this application was given to the plaintiff and the case was fixed for 4th Aprl. 1986 for its reply by the plaintiff. On 4th Aprl. 1986 the plaintiff failed to file any reply and the case was adjourned to 16th Aprl. 1986 for reply, subject to payment of Rs. 15/- as costs. On that date neither the plaintiff appeared in person nor he sent the costs to his counsel for payment. As a result thereof the counsel for the plaintiff made a statement at 3 p.m. that since the plaintiff had not turned up the costs could not be paid. On this statement the learned trial Court, in view of the provisions of S.35-B of the Civil P.C. not only disposed of the application filed by the defendant but dismissed the plaintiffs suit as well.

(3.) Learned counsel for the plaintiff petitioner submitted that at the most for nonpayment of the costs by the plaintiff, the application filed by the defendant could be disposed of, but under the circumstances the plaintiffs suit could not be dismissed on that account. In support of his contention he referred to Smt. Hakmi v. Pitamber, AIR 1978 Punj and Hary 145.