Sushila Jethwani @ Kiran Kriplani vs Mrs. Sumita Jethwani @ Baghvanti ...
2014 Latest Caselaw 4741 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         C.R.P No.144/2014

%                                                  23rd September, 2014

SUSHILA JETHWANI @ KIRAN KRIPLANI              ......Petitioner
                  Through: Mr. Ashok Kriplani, Advocate.

                          VERSUS

MRS. SUMITA JETHWANI @ BAGHVANTI JETHVANI & ORS.
                                        ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.15771/2014 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

+ C.R.P. No.144/2014

2. The challenge by means of this petition under Section 115 of

Code of Civil Procedure, 1908 (CPC) is to the impugned order of the trial

court dated 23.8.2014 by which the trial court has dismissed the suit for non-

prosecution on account of the petitioner/plaintiff refusing to pay costs of

Rs.5,000/-.

3. Petitioner/plaintiff is represented in this Court by her husband

and who also represented the petitioner/plaintiff in the court below in the

suit which is filed for compensation under alleged torts committed by the

defendants/respondents.

4. In order to appreciate the contumaciousness of the

petitioner/plaintiff, two orders of the court below are required to be noted

and which orders are dated 16.4.2014 and 23.8.2014(the impugned order).

These orders read as under:-

"Order dated 16.4.2014 Ld. counsel for plaintiff closed plaintiff's evidence as no further evidence is to be led. Separate statement to this effect is recorded.

With respect to the payment of TA/Diet Money to the witness, it is ordered that witness be paid Rs. 1,000/- as he has attended the court twice (17.02.2014 and today) and, therefore, entitled to a sum of Rs. 500/- for each visit. Ld. counsel for plaintiff declined to pay Rs. 1,000/- to the witness and he has only paid Rs. 500/-. Ld. counsel clearly states that he does not agree with the amount fixed by this court as TA/Diet Money to the witness. The conduct of the counsel for plaintiff is not acceptable as he has summoned the witness and is under the obligation to pay reasonable charges to the witness. In view of clear denial to pay the amount of Rs.1,000/- to the witness fixed by this court, a cost of Rs. 5,000/- is imposed on the plaintiff for non-compliance of the order of the court. The cost is to be

deposited with Prime Minister's Relief Fund. It is made clear that in case of non-deposit of the cost, the plaintiff may face adverse order.

Matter is fixed for filing of receipt of cost and final arguments on 11.7.2014.

Order dated 23.8.2014 An application has been moved seeking condonation of the cost as well as adjournment of the proceedings.

On 16.04.2014, a detailed order was passed and cost of Rs. 5,000/- was imposed upon the plaintiff. I find no justification to waive off/condone the cost. The application is dismissed. Ld. counsel submits before the court that he will not deposit the cost.

In view of clear refusal by the counsel for plaintiff to pay the cost, suit of the plaintiff is dismissed for non-prosecution as well as for non-payment of cost. File be consigned to Record Room."

5. Learned counsel for the petitioner/plaintiff by placing reliance

upon Order XVI Rule 4 CPC argues that even if a party does not pay diet

money to a witness, then, Courts have no option except to follow the

procedure of attaching the properties of a party and accordingly recover the

diet money from the sale of the same.

6. In my opinion, Order XVI Rule 4 cannot be read in the manner

as is sought to be urged on behalf of the petitioner/plaintiff in the facts of the

present case because in the present case when the doctor who was a witness

of the petitioner/plaintiff appeared, the Presiding Officer of the court was on

leave. It was not the fault of the witness if the court was on leave, but a

witness once he comes to the court is entitled to necessary diet money.

Admittedly, this diet money, and that too just of an amount of Rs.500/- was

refused to be paid by the petitioner/plaintiff and consequently the court

imposed costs of Rs.5,000/- for refusing to pay the diet money. I do not

think courts are in any manner constricted in passing appropriate orders for

due conduct of the suit when obduracy is shown repeatedly in the face of the

court. In this case, not only diet money of Rs.500/- was refused to be paid

for one occasion when court was on leave but on the date fixed for payment

of costs, the petitioner/plaintiff directly and blatantly refused to deposit the

costs. In my opinion, the court below in the facts of this case had no other

option but to dismiss the suit for non-prosecution. Just because only the diet

money is subsequently sought to be paid, but not the costs imposed, does not

mean that petitioner/plaintiff was doing a favour in agreeing to pay the diet

money because it is the petitioner/plaintiff who had caused imposition of

costs of Rs.5,000/- (of course, costs are not Rs.50,000/- but are only

Rs.5,000/-) and therefore petitioner/plaintiff also bound to pay costs but

there was refusal, and which refusal still continues.

7. Powers under Section 115 CPC are only to be exercised when

courts below act in excess of their jurisdiction. Merely because two views

are possible, and more so in the facts of the present case, I do not find that

the court below was unjustified in refusing to recall the order of imposition

of costs. If these kinds of orders such as the impugned order are to be

interfered with, then, a message which will be wrongly sent is that the courts

below do not have authority with them for conduct of the suits, and they

must bend to unreasonable obduracy of litigants.

8. Dismissed.

VALMIKI J. MEHTA, J SEPTEMBER 23, 2014 Ne