G. Sagar Suri vs Tikka Jagjit Singh Bedi ...
2001 Latest Caselaw 1731 Del

JUDGMENT

S.K. Agarwal, J.

1. This order will dispose of application under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure (for short "CPC") for review of order dated 23rd January, 2001 by which earlier application (I.A.No. 6464/2000) under Order 47 Rule 1 CPC of the applicant seeking review of order dated 19th January, 2000, restoring the suit was dismissed.

2. Facts necessary for disposal of this application are that the plaintiff filed a suit for rendition of accounts of dissolved partnership regarding premises on plot No. 97, Panchsheel Park, New Delhi in July, 1977. The defendant died in July, 1997 leaving behind his wife, son, four daughters and two children of the deceased daughter as his legal heirs/legal representatives (hereinafter referred to as "L.Rs. 1 to 7'). The plaintiff moved an application (I.A.No. 9333/97) under Order 22 Rule 4 CPC for bringing on record L.Rs. of the defendant, as the right to sue survived. Notice of the application was issued to the proposed L.Rs. On 19th January, 1998, Mrs. Harvinder Kaur (L.R.) appeared on her behalf and on behalf of her sister Mrs. Tavinder Kaur. Copy of the application was supplied to her. Notices to the unserved L.Rs. were issued and the matter thereafter was adjourned from time to time. They remained unserved and on 9th November, 1998 fresh notice for 22nd February, 1999 was issued for service on unserved L.Rs., subject to the payment of Rs. 1000/- to be deposited with Delhi Legal Aid Services Authority. The plaintiff failed to deposit the costs and to take steps to serve the unserved L.Rs., on 2nd November, 1999, the suit was dismissed under Section 35-B CPC. It was ordered:-

"None is present nor cost of Rs. 1000/- imposed earlier has been paid since November, 1998. The plaintiff cannot be allowed to prosecute the suit. The suit is accordingly dismissed in view of the provision of Section 35-B of the Code of Civil Procedure."

3. On the same date, i.e. 2nd November, 1999, plaintiff moved an application for restoration of the suit (I.A.No. 11011/99) under Order 9 Rule 4 read with Section 151 CPC pleading that the counsel for the plaintiff was under wrong impression that the case was listed in Court No. 22 and he was waiting there. When he realised the mistake, and came to the Court, where the suit was listed and he was informed that the suit was already dismissed. However, when his restoration application came up for hearing on 3rd November, 1999, then he came to know that suit was dismissed for non-payment of costs under Section 35B CPC and was not dismissed in default. This application was adjourned to 19th January, 2000. On that day (3rd November, 1999), the plaintiff deposited the costs of Rs. 1000/- with Delhi Legal Aid Services Authority. The plaintiff also filed another application (I.A.No. 11351/99) under Section 148 read with Section 151 CPC for re-calling the order dated 2nd November, 1999 dismissed the suit and for enlargement of time to deposit the costs up to the date of filing of the application. Original receipt of payment of costs was also filed. It was pleaded that the plaintiff's application for bringing on record the L.Rs. of the deceased-defendant was stilling pending disposal, Ms. Kamlesh Mahajan, who used to work with the counsel invariable used to appear in the Court of Joint Registrar. Neither the plaintiff nor his counsel knew about the costs having been imposed. It was pleaded that since the other party (proposed L.Rs.) were not appearing, so the rigour of Section 35B CPC could not be attracted. The application came up for hearing on 16th November, 1999. Notices were ordered to be issued for 1st December, 1999 through registered post, ordinary process as well as dusty. Notices were sent by registered post to all the L.Rs. and were also served dusty on Mrs. Praveen Kaur, Mrs. Harvinder Kaur and Mrs. Tavinder Kaur, who are residing at Delhi. None appeared on behalf of the proposed L.Rs. on 1st December, 1999 and on 11th January, 2000 when matter was adjourned to 12th May, 2000.

4. In the meantime, case was listed on 19th January, 2001 as the earlier application of the plaintiff (I.A.No. 11011/99) moved under Order 9 Rule 4 CPC was adjourned for this date. Other I.A. No. 11351/99 was also shown in the list. None appeared on behalf of the proposed defendants/L.Rs. Taking into consideration that the costs have already been deposited, original receipt was on record, the order dismissing the suit was re-called, both the applications were disposed of. Fresh notice for service on the proposed L.Rs. of the defendant was ordered to be issued for 3rd May, 2000. Thereafter on about 17th February, 2000 "the defendant" filed an application (IA No. 6464/2000) under Order 47 Rule 1 CPC for re-calling the order dated 19th January, 2000 restoring the suit. None appeared on behalf of the defendant-applicant on 27th September, 2000, 19th December, 2000, 5th January, 2001 and on 23rd January, 2001. The review application was dismissed. Now the defendant-applicant has filed above-noted application for review (I.A.No. 1921/2000) and for re-calling the order dated 23rd January, 2001 dismissing the earlier review application. Plaintiff has filed the reply opposing the application. I have heard the learned counsel for the parties and have been taken through the record.

5. Learned counsel for defendant-applicant argued that plaintiff did not take steps to serve proposed L.Rs. in his application (I.A.No. 9333/97) despite several opportunities. He did not deposited the costs of Rs. 1000/- with the "Delhi Legal Aid Services Authority" as ordered on 9th November, 1998 and the suit was rightly dismissed on 2nd November, 1999 under Section 35-B CPC. Costs could not be deposited in the dismissed suit and the only course open to the plaintiff was to file an appeal against the order. Learned counsel for plaintiff argued to the contrary. In order to appreciate the rival contentions, it is necessary to refer to Section 35-B CPC which reads:-

"35B. (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 hi in attending the Court on that date, and payment of such costs, on the date next following 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 defense by the defendant, where the defendant was ordered to pay such costs.

Explanation: Where separate defenses 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 defense 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."

6. Mere reading of the above Section would show that it provides for award of compensatory costs by one party to the other in the suit, ti discourage the party to litigation from causing undue and unnecessary delay in the prosecution of the suit. The payment of costs is the plainly one in favor of the individual litigant for reimbursing the other party in respect of the expenses incurred by him, in attending the Court on the date. The payment of such costs on the date next fixed as the condition precedent for further prosecution of the suit or the defense as the case may be. It being a penal provision has to be construed strictly. In this regard, it would be useful to refer to the observations made by the Full Bench in Prem Sagar and Ors. v. Phul Chand and Ors. . It was held:-

"As was observed in Anand Parkash's case (supra) such orders are in essence in terrorem, os that the unscrupulous litigant may not indulge in dilatory tactics. It calls for pointed notice that even her the result is not automatic and as held by the Full Bench discretion still remains with the trial Judge under Section 148 of the Civil P.C. to exercise his power in favor of the defaulting party. Therefore, if on the date next following the date of the order of payment of costs the issue is not raised by either of the parties or taken notice of by the Court, it cannot be said that thereafter on all any subsequent date the same can be resuscitated or that Section 35-B would continue to apply with all its rigour thereafter as well. Indeed it seems inevitable that if on the crucial date fixed for the payment of costs the question is not raised at all, then impliedly a waiver of the right arising in favor of the party entitled to costs would necessarily follow. Therefore, on subsequent dates it would not be open to the parties to reopen the issue at their will and seek the barring of the further prosecution of the suit or the defense under Section 35-B afresh. It is axiomatic that the law is for the vigilant and not for those who blissfully sleep over their rights."

(emphasis supplied)

7. In this case as noticed above, the plaintiff's application for bringing on record the L.Rs. of the deceased defendant was pending adjudication. No reply was filed by the L.Rs., who had appeared on 19th January, 1998. None of the proposed L.Rs. were present on any date even after imposition of the cots, strictly speaking the question of compensating the other party, who was not appearing did not arise. The costs to be deposited with the Delhi Legal Aid and Services Authority is not envisaged by Section 35-B CPC. This order was in the nature of an order under Order 9 Rule 2 CPC which provides for dismissal of the suit where summons/notices have not been served in consequence to the plaintiff's failure to pay court fee or the postal charges chargeable for such service. The Supreme Court in Ganesh Prasad v. Laxmi Narayan, held that when the Court fixes a time to do a thing, it always retains the power to extend the time for doing so under Section 148 CPC. This also finds support from the observations made in Arvind Construction Co. and Ors. v. U.O.I. and Ors., 38 (189) DLT 129 and Raj Kishore Gupta v. Shyanti Devi and Anr., . In view of the above, I do not fiend any merit in the contention that the costs could not be deposited in the dismissed suit; that the Court had no jurisdiction to extend the time and that the plaintiff ought to have filed an appeal.

8. Learned counsel for plaintiff next argued that any order restoring the suit could not have been passed without service of notice on the proposed L.Rs and that on 19th January, 2000 when the suit was restored, the application IA No. 11351/99 was not fixed for hearing and only IA No. 11011/99 was fixed. I am unable to agree. The suit was dismissed on account of the plaintiff's failure to pay the court fee or other charges etc. The suit was dismissed in the absence of the defendant, or the proposed L.Rs., who have yet not appeared, in application for restoration of the suit by the plaintiff, it was not necessary to issue notice. Reference in this regard can be made to the observations made by this Court in V. Bhagat v. Usha Bhagat, and Binod Kumar Agarwala and Anr. v. Satyabhama Debi, .

9. However, in this case notices of the application for restoration of the suit were served by registration post as well as dusty for 1st December, 1999, on which date the proposed L.Rs. did not appear. Plaintiff was directed to place on record service report of the L.Rs. on whom notices were served dusty. Matter was adjourned to 11th January, 2000. On that date also, none appeared on behalf of the proposed L.Rs. In the meantime, other application for restoration of the suit I.A.No. 11011/99 wad listed on 19th January, 2000. On that date also, none was present on their behalf. Perusal of the record reveals that the three of the proposed L.Rs., who were in Delhi, were duly served and the original postal receipts showing that the notices were sent to all the L.Rs. by registered post were also on record. Other application (I.A.No. 11351/99) was shown in the list. Taking into consideration, averment made in the two applications which were supported by the affidavit of the lawyer and the plaintiff respectively were allowed and the suit was restored to its original number. It is true that IA No. 11351/99 was adjourned for hearing to 12th May, 2001. But this did not absolve the proposed L.Rs. not to appear on 1st December, 199 and 11th January, 2000 and on the subsequent dates.

10. After restoration of the suit, the applicant-defendant on 17th February, 2000 filed an application (I.A. No. 6464/2000) under Order 47 Rules 1 and 2 read with Section 151 CPC for review of the order dated 19th January, 2000.

11. At the risk of repetition, it may be re-called here that in the plaintiff's application (IA No. 9333/99) defendant Ms. Harjeet Kaur appeared on her behalf and on behalf of her sister Tevinder Kaur on 19th January, 1998. Copy was supplied to her. None appeared on here behalf thereafter. Rest of the L.Rs. remained unserved. The suit was dismissed on account of non-deposit of costs of Rs. 1000/- under Section 35-B CPC on 2nd November, 1999. Plaintiff's first application (IA No. 11011/99) for restoration of the suit came up for hearing on 3rd November, 1999 and the other application (IA No. 11351/99) on 16th November, 1999. dusty notices were duly served on three L.Rs. living in Delhi and by registered post on the other L.Rs. for 1st December, 1999 and postal receipts are on record. None appeared on their behalf on 1st December, 1999, 11th January, 2000 and on 19th January, 2000 when one of the applications of the plaintiff was listed for hearing and for the reasons noticed above applications were allowed and the suit was restored.

12. On 12th May, 2000, Ms. Gita Mittal, Advocate appeared on behalf of "L.Rs." of defendant No. 1 and submitted that she had already moved an application for review of the order dated 19th January, 2000. Registry was directed to trace and place the same on record by the next date of hearing. Matter was ordered to be listed on 12th July, 2000. On this date learned counsel for plaintiff accepted the notice and the matter was adjourned to 27th September, 2000. On this date none appeared and application was ordered to be listed on 9th November, 2000. This application was thereafter listed on 19th December, 2000, 5th January, 2001 and 23rd January, 2001. None appeared on behalf of defendant-proposed L.R. Consequently, review application was dismissed and following order was passed:

"This is an application on behalf of defendants for recalling the order dated 19.1.2000.

None was present on behalf of the defendants on 5.1.2001. Nobody is present even today.

Dismissed."

13. At this stage, in order to appreciate the arguments, it would be appropriate to reproduce paras 4 and 5 of the application which read as under:-

"1 to 4 xxx xxx xxx

4. That the defendants received notice in the application and instructed the counsel for appearing in the matter. When the counsel for the defendant checked from the Registry it revealed that the matter was adjourned for 11.1.2000. On 11.1.2000 the Hon'ble Judge was on leave and the matter was adjourned to 12.5.2000.

5. That in order to prepare the reply to the application the counsel for the defendants inspected the file on 7.2.2000. On inspection it was revealed that the matter was listed again on 19.1.2000. The counsel of the plaintiff without informing the court that IA No. 11351/99 is coming up on 12.5.2000 argued the matter. Non appearance of the defendants' counsel was not intentional and only in the foregoing circumstances. Thereby defendants have been denied opportunity to contest the application under Section 148 CPC. For the non appearance of the defendants the application was allowed and the suit is restored to its original position.

  6 to 8   xxx     xxx  

 

  DEFENDANT   
  

 through 
  NEW DELHI                                          ADVOCATES 
 

 RUARY 17, 2000"   

 

14. The above-noted review application was not signed by any "defendant" not the affidavit of any "defendant" was filed in support of the same. The Advocate filed her own affidavit in support of application. From the reading of the application it was not clear on whose behalf the same was filed. In the application at several places it was stated that the application was moved on behalf of "defendants" and in some paragraphs it was said that the application was moved on behalf of "defendant". Vakalatnama in favor of any lawyer was not filed. It was filed on behalf of defendant Praveen Kaur only on 31st August, 2001 during the course of arguments. Learned counsel for petitioner also argued that on 31st August, 2001 when the Vakalatnama was filed on behalf of one Praveen Kaur all acts performed by the counsel on her behalf earlier stood rectified. This cannot help the applicant as the name of the person, on whose behalf the application was moved not disclosed either in the application or in the affidavit. In the backdrop of these facts, the review application was dismissed as noticed above.

15. The defendant has filed yet another application for (IA No. 1921/2001) under Order 47 Rule 1 CPC for re-calling the order dated 23rd January, 2001 dismissing his review application. In my considered view substantial justice between the parties having been done, no case for any further review is made out. The Apex Court in Pasupuleti Venkateswarlu v. The Motor & General Traders, after observing that the technical rules of procedure is the handmaid and not the mistress of judicial procedure held:

"equity justifies bending the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling factors or just circumstances".

16. For the foregoing reasons, I find no merit in the application and the same is dismissed. No order as to the costs.