JUDGEME TAD ORDER (oral)
The instant revision petition is filed under Article 227 of the Constitution challenging the order dated 19.7.2013 passed by the learned Civil Judge, Senior Division, Court No. 2, West Tripura, Agartala in Misc. (vio) 119 of 2011 arising out of Title Suit No. 56 of 2011 whereby and whereunder, the learned Civil Judge rejected the application filed by the petitioners under Section 35-B of the CPC and also allowed the petitioners a liberty to approach the respondents at any time for the amount of costs as ordered earlier.
2. Heard Mr. B. Majumder, learned counsel for the petitioners and Mr. T.K Deb, learned counsel for the respondents.
3. As agreed to by the learned counsel for the parties and taking note of the order impugned, the matter is taken up for final disposal.
4. The brief facts needed to be discussed are as follows:
The petitioners as plaintiffs filed a suit being Title Suit No. 56 of 2011 before the learned Court of Civil Judge, Senior Division, Agartala, West Tripura for passing a decree declaring the right, title and interest of the petitioners as plaintiffs (hereinafter referred to as plaintiff-petitioners) over the “C” schedule land and also for confirmation of possession over the said land as well as for an order of permanent injunction restraining the respondents who are the defendants in the said suit (hereinafter referred to as defendant-respondents). The petitioner-plaintiffs also filed an application under Order 39, Rule 1 and 2 of the CPC for granting temporary injunction restraining the defendant-respondents from entering into the C schedule land and the said application for temporary injunction was registered as Misc. 59 of 2011.
5. The defendant-respondents on receiving the show cause notice in the aforesaid misc. case as well as in the title suit filed written objection as well as written statement for vacating the ad-interim injunction granted by the Court on 20.4.2011 The learned court below on 10.5.2011 after hearing the parties vacated the ad-interim injunction granted on 20.4.2011 and also directed both the parties to maintain status-quo until further orders and fixed another date on 20.5.2011 for filing of written objection by the plaintiff-petitioners against the police report which was submitted by the police upon enquiry on 5.5.2011
6. The plaintiff-petitioners filed their objection on 20.5.2011 along with a petition under Order 26, rule 9 read with section 151 of the CPC for issuing a commission for local investigation of the suit land. On 20.5.2011, the learned court below passed an order for hearing of the injunction petition on 27.5.2011 and also to file objection by the defendant-respondents against the petition under Order 26 rule 9 read with Section 151 of the CPC filed by the plaintiff-petitioners.
7. On 27.5.2011, the defendant-respondents filed their written objection against the petition of the plaintiff-petitioners under Order 26 rule 9 read with Section 151 of the CPC and the learned court below on that day after hearing both the parties finally disposed of the petition of the plaintiff-petitioners under Order 39, Rule 1 and 2 of the CPC and also rejected the petition of the plaintiff-petitioners under Order 26, rule 9 read with section 151 of the CPC.
8. As the plaintiff-petitioners violated the order dated 27.5.2011 passed by the court below, defendant-respondents filed one application under order 39, Rule 2A read with Section 151 of the CPC which was registered as Misc. (vio) 119 of 2011. Thereafter, the case was posted for examination of the witnesses of the rival parties and the defendant-respondents adduced two witnesses on behalf of them and accordingly they have been cross-examined by the plaintiff-petitioners. Thereafter, the plaintiff-petitioners have adduced one witness, namely, Swapan Banik, but the defendant-respondents side did not cross-examine him. They have filed an application under Section 151 of CPC for allowing them to cross-examine the said witness later on. The court below on 22.3.2013 allowed the application filed by the defendant-respondents subject to payment of cost of Rs. 500/- to the plaintiff-petitioners and the next date of the case was fixed on 23.4.2013
9. On 23.4.2013, the defendant-respondents cross-examined the witness, i.e, OPW adduced by the plaintiff-petitioners without making any payment of costs as per order of the court below dated 22.3.2013 in Misc. (vio) 119 of 2011. Thereafter on 8.5.2013, the plaintiff-petitioners have filed an application under Section 35-B of the CPC for striking out the further prosecution of the violation case, i.e, Misc.(vio) No. 119 of 2011.
10. On 16.5.2013, the case was fixed for filing written objection against application under Section 35B of the CPC, but the defendant-respondents did not file any written objection against the said application under Section 35B of the CPC.
11. The learned court below, after hearing the parties passed an order on 19.7.2013 rejecting the application under Section 35B of the CPC with an observation that from the conduct of the plaintiff-petitioners and their engaged learned lawyer, it is presumed that they exempted the defendant-respondents from making any payment of amount of costs by their conducts and now the plaintiff-petitioners had taken their aforesaid plea under section 35B of the CPC only with view to harass the defendant-respondents and for taking a wrongful gain.
12. Being aggrieved and dis-satisfied with the aforesaid order dated 19.7.2013, the instant revision petition is filed by the plaintiff-petitioners.
13. The defendant-respondents supporting the impugned order have filed their affidavit-in-opposition against the prayer of the plaintiff petitioners in the instant revision petition at this stage.
14. The question involved in this revision petition relates to the scope and effect under Section 35B of the CPC and as to whether on issue of non-payment of costs being not raised at the earliest opportunity, the principle of waiver would apply or not.
15. On perusal of the impugned order shows that the learned lawyer of the plaintiff-petitioners raised for striking out the further prosecution of the violation case and also relied upon a decision of the Apex Court in Monohar Singh v. D.S Sharma, (2010) 1 SCC 53 wherein, the Apex Court noted that “if the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party.” The learned court below in its order also recorded that “the learned lawyer appearing for and on behalf of the defendant-petitioner verbally submits that on 23.4.13 before cross-examination of OPW No. 1 Shri Swapan Banik, the defendant-petitioners approached the plaintiff-respondents and their lawyer to receive Rs. 500/- towards cost, but they refused to receive the amount of cost and allowed the Ld. Lawyer of the defendant-petitioners to cross-examine the OPW 1. Without raising any objection regarding payment of cost by the defendant-petitioners, but subsequently to take an illegal advantage the plaintiff-respondents filed this application under Section 35 B of CPC on 8.5.13 suppressing the real fact.” Considering the entire submission, the learned court below passed the impugned order.
16. While assailing the impugned order, Mr. Majumder has first submitted that the learned Court below committed an error allowing the defendant-respondents to cross-examine the OPW as produced by them and also for not striking out the prosecution of the violation case. He further submits that the learned court below failed to appreciate the law laid down by the Apex Court in Monohar Singh (supra), particularly, para-8 of the said Report, which is as under:
“8. This takes us to the meaning of the words ‘further prosecution of the suit’ and ‘further prosecution of the defence’. If the legislature intended that the suit should be dismissed in the event of non-payment of costs by the plaintiff, or that the defence should be struck off and the suit should be decreed in the event of non-payment of costs by the defendant, the legislature would have said so. On the other hand, the legislature stated in the Rule that payment of costs on the next date shall be a condition precedent to the further prosecution of the suit by the plaintiff (where the plaintiff was ordered to pay such costs), and a condition precedent to the further prosecution of the defence by the defendant (where the defendant was ordered to pay such costs). This would mean that if the costs levied were not paid by the party on whom it is levied, such defaulting party is prohibited from any further participation in the suit. In other words, he ceases to have any further right to participate in the suit and he will not be permitted to let in any further evidence or address arguments. The other party will of course be permitted to place his evidence and address arguments, and the court will then decide the matter in accordance with law. We therefore reject the contention of the respondents that Section 35-B contemplates or requires dismissal of the suit as an automatic consequence of non-payment of costs by the plaintiff.”
17. He further submits that when the defendant-respondents failed to pay the costs as awarded for granting adjournment to cross-examine the OPW, the defendant-respondents are debarred at any rate from proceeding with the violation case being Section 35B of the CPC is a mandatory in nature and there is no other option before the learned court below except to strike out the further proceeding of violation case.
18. On the other hand, Mr. Deb, learned counsel for the defendant-respondents relying upon a decision of the Gauhati High Court in Surendra Mohan Sangma v. Khetrinath Sangma, AIR 1988 Gauhati 74 submits that Section 35 B is not mandatory, but directory and when a procedure is a directory one, then the discretion is always with the court whether the court will prohibit the parties either from further prosecution of the suit or defence.
19. Mr. Deb further submits that even before taking up the matter for final hearing, the defendant-respondents offered the amount to the learned counsel for the plaintiff-petitioners, but the learned counsel of the plaintiff petitioners again refrained himself from receiving that amount. Thus, it cannot be said that the defendant-respondents intentionally did not pay the amount of cost as ordered by the court below.
20. He further submits that neither party has any vested right on mere filing an application under Section 35-B of CPC that the court should pass an order prohibiting either of the party from further prosecution or defence. He also submits that the court has to see whether non-payment of cost is an intentional and willful one or not and even after offering to the party, in whose favour cost was award, if he did not accept the same, then Section 35-B of CPC has no application, rather by way of non-acceptance of the cost amount, the party who refused the same waived his right for claiming the said amount again.
21. In support of his aforesaid contention, he has placed reliance on a decision of the Roor Singh… v. Raghbir Singh…, 2003 AIHC 523 wherein their Lordship of Punjab & Haryana High Court stated that where issue of non-payment of costs is not raised, same cannot be resuscitated, principle of waiver would apply.
22. He has also submitted that regarding the offering of the cost amount to the learned counsel, the defendant-respondents have also sworn one affidavit on 16.5.2013 disclosing the actual facts before the court below which would be evident from the impugned order. As a question is involved regarding the scope and effect of Section 35 B of the CPC, it would be proper to reproduce the same. Accordingly, the provision of Section 35 is reproduced hereunder:
“S. 35B. Costs for causing delay.—(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party, to the suit—
(a) Fails to take the step which he was required by or under this Code to take on that date, or
(b) Obtains an adjournment for taking such step or for producing evidence or on any other ground,
The Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of—
(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs;
(b) the defence by the defendant, where the defendant was ordered to pay such costs.
Explanation.—Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.
(2) The costs, ordered to be paid under sub-section(1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.”
23. In the case of Surendra Mohan Sangma (supra), His Lordship B.L Hansaria, J., while dealing with similar question has taken note of the decision of the Apex Court in R.B Sugar Co. v. Rampur Municipality, AIR 1965 SC 895 wherein the Apex Court observed, inter alia,
“The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.”
24. His Lordship had also taken into consideration the decision of the Apex Court in Ganesh Prasad v. Lakshmi Narain, AIR 1985 SC 964, wherein the Apex Court considered the word ‘may’ and ‘shall’ and ultimately his Lordship held that the provisions of Section 35-B CPC is not mandatory, rather directory. In para-10 of the said Report, his Lordship has noted, inter alia,
“The intention behind awarding of cost being to avoid delay in disposal of suits, this purpose has not much to do with the condition that the cost must be paid on the date next following the date of imposition of the cost. The awarding of cost has no doubt relevance with the object of expediting the trial so that unnecessary adjournments are not sought for. But then the condition that it must be paid on the date next following the imposition of costs has not much to do with the underlying idea of avoiding delay. It would not, therefore, be acting against the intention of the legislature to regard the actual payment of the cost as being directory in nature instead of being mandatory. Of course, this does not mean that the payment as awarded by Court could be deferred unduly or that the cost would be paid at the pleasure of the party against whom the same has been awarded.”
25. His Lordship has also taken into the note of Rule 21, O.11 of the CPC in para-11 of the said Report which was considered by the Apex Court in Babbar Sewing Machine Company v. Trilok Nath Mahajan, AIR 1978 SC 1436 which is as follows:
“‘21. Non-compliance with order for discovery-(1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.
(2) where an order is made under sub-rule(1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.’
As to this provision, it was stated in para-24 that it should be applied only when the default is willful, and as a last resort the Court would dismiss a suit or strike out the defence when the party is guilty of such contumacious conduct or when there is willful attempt to disregard the order of Court that the trial of the suit is arrested. This view was taken because a suit cannot be lightly thrown out, or a defence struck out without adequate reason. It was further stated that power under the aforesaid provision should be invoked where the defaulting party fails to attend to hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.”
26. There is no doubt that even if, when a provision is directory but not mandatory, then also a party is bound to follow the said procedure. Mere directory provision does not entitle a party not to follow the same. In the instant case, it appears from the record that the date of cross-examination of OPW was fixed on 23.4.2013 on payment of cost, but the plaintiff-petitioners and their engaged lawyer did not accept the cost amount as offered. Not only that the plaintiff-petitioners also allowed the defendant-respondents to cross-examine the OPW produced by them even without payment of costs. Thus, it can be easily said that the plaintiff-petitioners waived their right from debarring the defendant-respondents from cross-examining their witness and not only that, also for striking out the prosecution of the violation case.
27. To consider the principle of waiver, the conduct of the party has to be taken into consideration. In the instant case, the learned trial Court in its order specifically stated, inter alia, that “I have carefully gone through the provisions of law and the case law referred by the Ld. Lawyer of the plaintiff-respondents and found that the appropriate action prescribes for non-payment of cost is to close the cross-examination of the witness and prohibit from further prosecution of the suit or the defence, as the case may be. But on perusal of the record, I find that on 23.4.13 the Ld. Lawyer of the plaintiff-respondents not only failed to bring the alleged fact to the notice of this court but he also allowed the ld. Lawyer of the defendant-petitioners to cross examine the OPW-1 raising no objection.”
28. It appears from the record that an application under 35B CPC was filed on 8.5.2013, i.e, after cross-examination of the OPW. Thus, it can also be said that the plaintiff-petitioners themselves frustrated the scope of Section 35B of the CPC as they did not file the said application and also raise objection before cross-examination of OPW produced by them.
29. The legislative history, the intention behind incorporation of Section 35B of the CPC and the serious consequences which may follow all tend to show that the provision has to be regarded as directory and not mandatory and thus, mere failure to deposit the cost as awarded on the next following day should not in all case prohibit further prosecution of the suit or the defence. In the instant case, the learned court below even did not deprive the plaintiff-petitioners from the amount of cost as awarded; rather the plaintiff-petitioners were given liberty to approach the defendant-respondents at any time for the amount of cost.
30. In the case of Monohar Singh (supra), the trial court dismissed the suit for failure to pay the costs in spite of several opportunities. The High Court in appeal upheld the decision of the trial court holding that the provisions of Section 35-B CPC were mandatory and if costs levied were not paid, the only course open to the court is to disallow the prosecution of the suit, meaning thereby dismissal of the suit and the Apex court while considering the appeal preferred against the judgment of the High Court and discussing about Section 35B in para-9 of the said Report, said that when Section 35-B states that payment of such costs on the date next following the date of the order shall be a condition precedent for further prosecution, it clearly indicates that when the costs are levied, it should be paid on the next date of hearing and if it is not paid, the consequences mentioned therein shall follow. But the said provision will not come in the way of the court, in its discretion in extending the time for such payment, in exercise of its general power to extend time under Section 148 CPC. Having regard to the scheme and object of Section 35 B, it is needless to say that such extension can be only in exceptional circumstances and by subjecting the defaulting party to further terms. But in the instant case, it cannot be said that the defendant-respondents are the defaulting party. Thus the fact of Monohar Singh (supra) is totally different than the case in hand and hence, the said case, in no way, helps the plaintiff-petitioners.
31. On proper scrutiny of the order of the court below, this court is of the considered opinion that the view taken by the learned Civil Judge, senior division, does not suffer from any illegality or irregularity warranting interference by this court as sought for, rather supported by the decision of the full Bench judgment of Punjab and Haryana High Court in the case of Prem Sagar v. Phool chand, 1 (1983) 85 P.L.R 797, wherein it was held that if the issue of non-payment of costs is not raised, the same cannot be resuscitated, which is subsequently followed in Roor Singh (supra).
32. In view of the above facts and circumstances and the reasoned stated as aforesaid, this petition fails and the same is dismissed. No order as to costs. Interim order passed earlier shall stand vacated.
33. The learned Civil Judge, senior division, Court No. 2, West Tripura, Agartala is directed to dispose of the violation case as well as suit as expeditiously as possible.