Manohar Singh vs D.S. Sharma & Anr.
2012 Latest Caselaw 41 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                        C.R.P. 200 of 2010
+                               Date of Decision: 3rd January, 2012



#     MANOHAR SINGH                                   .....Petitioner
!                                                Through: In person

                                Versus

$     D.S. SHARMA & ANR.                            ....Respondents
                                      Through: Mr.Vishwa Bhushan,
                                      Advocate for R-2.


      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN



                              ORDER

P.K BHASIN,J:

This revision petition is at the instance of an employee who is fighting against his erstwhile employer, respondent no.2 herein, for getting damages on account of the employer having conducted a malicious enquiry against him. He is aggrieved by the order dated 27.11.2010 passed by the trial Court whereby his application under Section 148 of the Code of Civil Procedure (CPC in short) for enlargement of time in making the payment of costs of adjournment imposed on him 09/02/04 has been dismissed.

2. The petitioner-plaintiff had filed a suit for damages against the respondents for defaming him by holding a malicious domestic enquiry against him. On 07-01-2004, when the case was fixed for cross- examination of defendants' witness(DW-1) the petitioner-plaintiff had sought an adjournment because of non-availability of his counsel. The learned trial Judge granted the adjournment but subject to payment of costs of Rs.5,000/-. The case was adjourned to 09.02.2004. The costs were not paid on the adjourned date but no adverse order was passed on that date of hearing and thereafter on some ground or the other the trial was adjourned on many dates and finally on 27.03.05 the suit came to be dismissed by the trial Court by invoking Section 35-B CPC. Challenge to that order of dismissal of the suit before this Court failed and then petitioner-plaintiff approached the Hon'ble Supreme Court where he succeeded in getting an order for the revival of his suit. It was held by the Supreme Court in its order dated 13.12.2009 passed (in civil appeal no. 7554 - 7555 of 2009) that the suit could not be dismissed for non-payment of costs under Section 35B CPC. While disposing of the appeal the Hon'ble Supreme Court had observed in para no.6 of its order as under :-

" 6. We may also refer to an incidental issue. When section 35B 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 extending the time for such payment , in exercise of its general power to extend the time under section 148 of CPC. Having regard to the scheme and object of section 35B, it is needless to say that such extension can

be only in exceptional circumstances and by subjecting the defaulting party to the further terms. No party can routinely be given extension of time for payment of costs, having regard to the fact that such costs under section 35B were itself levied for causing delay."

Then after observing in para no.9 the plaintiff had harassed the defendant and its witnesses in the concluding para no. 10 it was held as under:-

" 10. (i) The right of the plaintiff to cross -examine DW-2 stands forfeited and he is barred from prosecuting the suit further.

(ii) The trial court shall however permit the defendants to let in any further evidence ,hear arguments and then dispose of the suit.

(iii) However, if plaintiff-appellant tenders the costs with an appropriate application under section 148 CPC, the trial Court may consider his request in accordance with law. Even if the Court extends the time for deposit, permits the plaintiff to pay the costs and prosecute the suit further, that will not entitle the plaintiff to cross-examine DW2."

3. Thereafter, the petitioner-plaintiff filed an application under section 148 CPC in the trial Court on 24-12-2009 and the same was ordered to be listed on 18.01.2010. On that date the petitioner-plaintiff had brought to the Court the cheque for Rs.5,000/- which was kept on record by the trial Judge for being given to the other side. Then notice of that application was given to the defendants, respondents herein, and after considering their objections that application was dismissed by the trial Court vide order dated 27.11.10 which has given rise to this revision petition.

4. The learned trial Court noticed the pleas raised in opposition to that application on behalf of the respondents-defendants in para no.10 of the impugned order and the relevant part therefrom is re-produced below:-

"10........................ It is submitted by ld. Counsel for the defendants/non-applicants that at the most only thirty days could be enlarged as a matter of time for the plaintiff to deposit the cost or to do any act as per the directions of this court. It is further submitted by ld. counsel for the defendants that thirty days should be counted from the date of order dated 09.02.2004 when it was directed to the plaintiff to deposit the cost up to 09.03.2004. Thereafter, on 01.04.2005 my ld. Predecessor again directed to deposit the cost. However, the plaintiff did not deposit the cost. On 27.4.2005, an application for waiver of cost was moved and the said application was also dismissed. It is further submitted by ld. Counsel for the defendants that the time should be counted from 27.4.2005. However, he further submits that for the sake of interest of justice, though not admitted let time may be counted from 13.11.2009 i.e. from the date of order passed by the Hon'ble Supreme Court of India then also the cost has also not been deposited within thirty days as the cheque was given of dated 18.1.2010. He further submits that at the most from the date of order passed by the Hon'ble Supreme Court of India, cost should be deposited up to 13.12.2009. It is further submitted by ld. counsel for the defendants that the cheque is also not a valid tender of the cost and cost should either be deposited by pay order or to be paid in cash. In these circumstances, he further submits that this application may be dismissed."

5. In para no.11 of the impugned order the learned trial Court noted the submission made by the petitioner-plaintiff and that para is also re- produced below:-

"11. On the other hand, it is stated by the plaintiff that after the receipt of the certified copy from the Hon'ble Supreme Court of India, he moved this application and also deposited the cost."

6. Then in the concluding para no.12 of the impugned order the learned trial Court observed as under:-

12. "This court does not agree with the contentions made by the plaintiff. It is not the case of the plaintiff that when the Hon'ble Supreme Court of India passed the order, he was not present . The plaintiff was very well aware about the contents of the order. Moreover, the contention of the appellant is itself false as the noting upon the certified copy is of 4.12.2009 when the certified copy was ready and even if thirty days is to be continued from 14.12.2009 then also those thirty days expired on 13.1.2009. Thus, the contentions raised by the applicant in the application do not inspire the confidence. Therefore, this application of the plaintiff is dismissed"

7. The petitioner argued that since the application under Section 148 CPC had been moved by him pursuant to the liberty granted to him by the Supreme Court the same could not have been dismissed on the ground that it had been filed after the expiry of 30 days from the date of the order of the Supreme Court. I am in full agreement with this submission of the petitioner. Since the Supreme Court had not fixed any time for the petitioner for moving the application under Section 148 CPC the same could not have been dismissed on the ground that it had been filed after 30 days from the date of the order passed by the Supreme Court in the petitioner's appeal. However, as far as the final order of the learned trial Court dismissing the petitioner's application is concerned I am not inclined to interfere with the same for the reason that no reason whatsoever had been given by the petitioner - plaintiff in his application under Section 148 CPC justifying the relief sought for by him in that application. As noticed

already, in the petitioner's appeal itself the Hon'ble Supreme Court had clearly observed that the Court should grant enlargement of time, as provided under Section 148 CPC, only in exceptional cases keeping in view the scheme and object of section 35-B CPC. Therefore, in the absence of any reason having been given by the petitioner - plaintiff in his application under Section 148 CPC for the relief sought for and he having simply narrated the facts leading to the filing of the appeal before the Supreme Court and passing of the order giving him the liberty to move an application under Section 148 CPC I am not inclined to interfere with the order of the learned trial Court dismissing that application.

8. This revision petition is, therefore, dismissed.

P.K. BHASIN,J

January 3, 2012