Delhi High Court
Manjula Gupta vs Sumit Vihar Coop. Group on 23 February, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M. (Main) No.205 of 2010 & C.M. Appl. No.2649 of 2010
% 23.02.2010
MANJULA GUPTA ......Petitioner
Through: Mr. I.A. Khan, Advocate.
Versus
SUMIT VIHAR CO-OP. GROUP ......Respondent
Date of Reserve: 11th February, 2010
Date of Order: February 23, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. By this petition, the petitioner has assailed order of the trial court, operative part
of which reads as under :-
"Perusal of the record reveals that plaintiff has not been diligent in
prosecuting this case. The issues in the matter were framed on
28.03.2005 i.e. more than 4 years ago and thereafter as many as 10
opportunities were given to the plaintiff to lead evidence in the
matter, but no evidence in the matter was led by the plaintiff. This
court vide order dated 21.01.2008 constrained to close the right of
the plaintiff to lead the evidence. However, on an application U/s
151 CPC filed on behalf of plaintiff vide order dated 09.05.2008
this court taking sympathetic view and in the interest of justice
allowed one opportunity to the plaintiff to lead evidence in the
matter subject, however to the cost of Rs.1,500/-. Neither the cost
were paid nor any steps were taken by the plaintiff to lead evidence
in the matter therefore, this court vide order dated 25.03.2009
again close the P/E. Considering the conduct of the plaintiff in the
matter, no ground to set aside order dated 25.03.2009 has been
made out of this application. The application is without any merit.
The same is accordingly dismissed."
2. The aforesaid facts as recorded by the trial court are not disputed. It is not
disputed that the petitioner had not paid the cost when the matter was taken up again for
plaintiff's evidence, subject to payment of cost. Instead, the petitioner filed an
application for waiver of the cost. The trial court dismissed the application for waiver of
cost and closed the plaintiff's evidence. The petitioner again moved an application under
Section 151 CPC for allowing the petitioner to lead evidence.
3. The petitioner had filed a suit for recovery of Rs.1 lac and mandatory injunction.
The petitioner did not lead evidence in the suit for about four years and despite giving ten
opportunities. I consider that the trial court rightly closed the evidence of the petitioner.
The petitioner does not have any inherent right to continue a suit in perpetuity and not to
lead evidence or not to pay the cost imposed by the trial court. Under Section 358(1)
CPC, it is mandatory upon the trial court that if the cost as ordered by the trial court is not
paid and the cost was a condition precedent for further prosecution of the case then, the
court has not to allow further prosecution of the part of the litigation for which cost was
imposed.
4. In the present case, further leading of evidence by the plaintiff was made subject
to payment of cost. The plaintiff failed to pay the cost. The trial court was justified in
closing the plaintiff's evidence. I find no infirmity in the order. The petition is hereby
dismissed.
SHIV NARAYAN DHINGRA J.
FEBRUARY 23, 2010
'AA'
