M/S Jaconde Overseas Pvt. Ltd. vs Hallax Applied Power Pvt.Ltd
2014 Latest Caselaw 1142 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                             C.S. (OS) No.1488/2007

                                                   Decided on : 04.03.2014

       M/S JACONDE OVERSEAS PVT. LTD.                        ...... Plaintiff

                    Through:       Mr.Rakesh Kumar, Adv.

                        Versus

       HALLAX APPLIED POWER PVT.LTD                           ... Defendant

                    Through:       Ms.Vinny Shangloo, Adv.

      CORAM:
      HON'BLE MR. JUSTICE V.K. SHALI

       V.K. SHALI, J. (ORAL)

OA No.69/2013

1. This is a chamber appeal against the order dated 05.03.2013 passed

by the learned Joint Registrar under Rule 4 Chapter II of the Delhi

High Court (Original Side) Rules, 1967. Briefly stated, the facts of

the case are that this is a suit for recovery of damages of

Rs.49,93,887/- on account of forcible eviction of the

appellant/plaintiff from the suit property by the defendants.

2. It is stated in the appeal that after framing of issues on 25.11.2008,

the plaintiff was given time of six weeks for the purpose of filing evidence by way of affidavit. However, the said evidence was not

filed and a cost of Rs.3,000/- was imposed on the plaintiff on

22.05.2009 which was to be deposited with the Delhi High Court

Legal Services Committee which was not deposited by the plaintiff

and on the next date of hearing i.e.17.11.2009, two additional sets

of cost of Rs.5,000/- & Rs.500/- were imposed to be deposited with

the Delhi High Court Legal Services Committee. The plaintiff also

did not bring on record the original receipts regarding deposit of

cost on 07.04.2010, 07.05.2010 and 15.09.2010 as a consequence

of which, further cost of Rs.10,000/- was imposed on 12.07.2011 to

be deposited with Delhi High Court Legal Services Committee.

The evidence of one witness by way of affidavit was filed by the

plaintiff but even the said witness was not made available for the

purpose of cross examination. On 13.09.2012, again on the request

of the plaintiff, one last and final opportunity was granted to the

plaintiff to conclude the evidence subject to payment of cost of

Rs.20,000/- to the defendants. On 05.03.2013, the cost of

Rs.20,000/- by way of four cheques was offered to the learned

counsel for the defendants, however, he refused to accept the same

as it was stated by him that the plaintiff had not cleared the cost imposed on him on the previous dates. The plaintiff/appellant was

not able to show to the court that all the earlier costs had been

deposited or paid except showing a receipt dated 11.08.2011 with

respect to the cost imposed on 12.07.2011. Consequently, the

learned Joint Registrar closed the evidence of the plaintiff.

3. I have heard the learned counsel for the appellant/plaintiff as well

as the learned counsel for the defendants.

4. The learned counsel for the appellant/plaintiff has contended that

so far as the payment of the cost of Rs.3,000/- imposed on

22.05.2009 and two sets of cost of Rs.5,000/- & Rs.500/- imposed

on 17.11.2009 are concerned, that were deposited by the plaintiff

with the Delhi High Court Legal Services Committee on

07.05.2010 and the original receipts were also filed on the said

date and the same was on judicial record at the time when the

impugned order was passed. However, because of the inadvertent

mistake of the counsel, it could not be pointed out to the court. So

far as the cost of Rs.10,000/- is concerned, which was imposed on

12.07.2011, that was also deposited by the plaintiff with the Delhi

High Court Legal Services Committee on 11.08.2011 as also the

cost of Rs.20,000/- imposed vide order dated 12.03.2012, but this fact also could not be brought to the notice of the court as the

counsel was ignorant about the receipt having already been filed.

5. It was submitted by the learned counsel for the appellant/plaintiff

that the order of closure of plaintiff's evidence by the learned Joint

Registrar on 05.03.2013 was not sustainable in the eyes of law and

in any case it was too harsh because the plaintiff was even prepared

to pay the cost imposed on 13.09.2012 by way of four cheques.

6. The learned counsel for the defendants has contended that the

payment of cost under Section 35B of the CPC is a precondition

for permitting a party to participate in the proceedings. In this

regard, it has been contended by him that the learned Joint

Registrar has rightly placed reliance on Manohar Singh v.

D.S.Sharma & Anr. (2010) 1 SCC 53 wherein hit has been

observed that in case cost under Section 35B CPC is not deposited

by the defaulting party, such defaulting party can be prohibited

from any further participation in the suit. The learned counsel for

the defendants has also placed reliance on Sanjeev Kumar Jain v.

Raghubir Saran Charitable Trust and Ors.; (2012) 1 SCC 455.

7. I have given my careful consideration to the submissions made by

the learned counsel for the parties and also gone through the judgments relied upon by the learned counsel for the defendants.

The judgment of the Apex Court in Manohar Singh's case clearly

lays down that a party who defaults in payment of cost, his defence

could be struck off or he may be precluded from prosecuting his

case. So far as the instant case is concerned, the facts are that

admittedly appellant/plaintiff was not in default with regard to the

clearance of the previous costs. The only thing was that the costs

were deposited with the Delhi High Court Legal Services

Committee, and even the original receipts were filed, but the

learned counsel appearing for the appellant/plaintiff was not aware

and could not point out to the court that cost imposed on

22.05.2009, 17.11.2009, 12.07.2011 & 12.03.2012 stood already

paid and the original receipts in that regard were on record. The

cost imposed on 17.11.2009 of Rs.8,500/- had been paid vide

Receipt No.4222 on 07.05.2010, the cost imposed on 12.07.2011 of

Rs.10,000/- had been paid vide Receipt No.5694 on 11.08.2011

and the cost imposed on 12.03.2012 had been paid vide Receipt

No.8667 on 04.09.2012. Thus, all the costs except the cost imposed

on 13.09.2012 had been cleared well before the date of 05.03.2013

when the impugned order was passed closing the evidence of the plaintiff/appellant. On the date when the evidence of the

plaintiff/appellant was closed, admittedly the affidavits of three

witnesses of the plaintiff/appellant were on record. In such a

circumstance, when the affidavits of three witnesses filed by the

plaintiff were already on record and the plaintiff was prepared to

the cost imposed on 13.09.2012 on account of adjournment having

been obtained by him, the learned Joint Registrar ought to have

directed the defendants to accept the cost and proceed ahead with

the trial. But instead of doing so, the learned Joint Registrar seems

to have been swayed by the submissions made by the learned

counsel for the defendants that the plaintiff has not deposited the

cost and because of the said default, the evidence of the

plaintiff/appellant was closed. I am of the view that the order

passed by the learned Joint Registrar was too harsh qua the

plaintiff/appellant who had admittedly filed affidavits by way of

evidence of three witnesses though he had been lax in prosecuting

the matter. Under such circumstances, I feel that the order passed

by the learned Joint Registrar vide order dated 05.03.2013 deserves

to be set aside and the appeal of the plaintiff/appellant deserves to

be allowed and the plaintiff be given one opportunity to make the witnesses available whose affidavits are already on record for the

purpose of cross-examination after permitting them to tender their

affidavits which are on record by way of evidence. Ordered

accordingly.

8. The matter be listed before the Joint Registrar on 02.04.2014 for

the purpose of fixing a date so that the cross examination of the

witnesses could be completed after giving an opportunity to the

witnesses to tender their affidavits and permitting the cross-

examination of the witnesses. It is made clear that only one

opportunity be given to the plaintiff to produce the witnesses for

the purpose of cross-examination.

V.K. SHALI, J.

MARCH 04, 2014 dm