Chammi Begum (Thr Its Attorney vs Noor Bano & Ors
2015 Latest Caselaw 190 Del

4# $
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+            CM(M) 1125/2014 and CM No. 21323/2014
%                                          Decided on: 12th January, 2015
CHAMMI BEGUM (THR ITS ATTORNEY
HOLDER NAMELY MRS SHAHIDA AQEEL) ..... Petitioner
                Through: Mr.Pankaj Aggarwal, Advocate with
                          Mrs.Shahida Aqueel, Petitioner in
                          person.
                versus

NOOR BANO & ORS                                      ..... Respondents

                          Through:     None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J (ORAL)

1. The Plaintiff Chammi Begum filed the suit through Smt. Shahida Aqueel, her attorney seeking permanent injunction and restraint from dispossessing the Plaintiff/ Petitioner from the suit premises bearing Municipal No. 1237-1238, Haveli Hissamuddin, Bali Maran, Delhi against Noor Bano, Asfia Shees and Afsha Saeed. The Petitioner is aggrieved by the order dated 21st April, 2014 whereby the right of the Petitioner as Plaintiff to lead evidence was closed and the order dated 10th November, 2014 whereby the review petition was dismissed.

2. Before dealing with the issue whether the right to lead Plaintiff's evidence was rightly closed or not it would be relevant to note certain order.

3. The issues were settled on 24th October, 2011 and the matter was listed for filing of the Plaintiff's evidence with advance copy to the opposite counsel atleast 15 days prior to 30th January, 2012. On 30th January, 2012

the Plaintiff sought an adjournment to file the Plaintiff's evidence. Thus one last and final opportunity was granted and the matter was listed on 29 th March, 2012. Even on that date no Plaintiff's evidence was filed and none was present on behalf of the Plaintiff. Since the learned counsel for the Defendant submitted that he had received an advance copy of the affidavit of the evidence of Plaintiff the matter was listed for 4th May, 2012, on which date the evidence by way of affidavit of Smt. Shahida Aqueel, attorney of Chammi Begum was filed as PW-1. The matter was listed on 17th July, 2012 for the statement and cross-examination of Smt.Shahida Aqueel when she was present however, adjournment was sought on the ground that PW-1 had not brought original documents. The request was allowed subject to cost of Rs.200/- to be paid to the Defendants. On the next date, that is, 27th August, 2012 it was pointed out by the learned counsel for the Defendants that the copies of the original documents had not been filed by the Plaintiff and even the cost imposed vide order dated 17th July, 2012 had not been paid. The learned Trial Court directed the Plaintiff to supply the copies before the next date and listed the matter for statement and cross-examination of PW-1 on 9th October, 2012. On 9th October, 2012 copies of documents were supplied and the matter was further adjourned to 21st December, 2012. On 21st December, 2012 affidavit of PW-1 was tendered and last and final opportunity was granted to the Defendants to cross-examine PW-1, subject to cost of Rs.1,000/- to be paid to the Plaintiff before the next date. On 5th March, 2013 cross-examination of PW-1 was deferred as the main counsel for the Defendant Nos. 1, 2 and 3 was not available due to personal difficulty and thus subject to cost the matter was listed for cross-examination of PW-1 on 20th March, 2013. On 20th March, 2013 adjournment was sought on

behalf of the Plaintiff on the ground that the PW-1 was not available due to the Board Exams of her son which request was allowed and the matter was listed for 26th April, 2013. On 26th April, 2013, since cost had not been paid by the Defendant and the Plaintiff also sought adjournment the matter was adjourned to 29th May, 2013. On 29th May, 2013 PW-1 was not available due to personal difficulty and thus the Trial Court granted one last and final opportunity to the Plaintiff, subject to cost of Rs.1,000/- and the suit was listed for statement and cross-examination of PW-1 on 27th August, 2013. Again on 27th August, 2013 an adjournment was sought on behalf of the Plaintiff on the ground that PW-1 was unwell. Further affidavit of PW-2 Shabana Nafees was filed. Subject to additional cost of Rs.1,000/- last and final opportunity was granted to the Plaintiff for statement and cross- examination of PW-1 and PW-2 on 30th September, 2013. On 30th September, 2013 on joint request the matter was adjourned however, the cost as directed was not paid by the Plaintiff. On 7th December, 2013 since the learned Presiding Officer was on leave, the suit was listed on 20th March, 2014. On 20th March, 2014 the learned Judge noted that PW-1 who was present in person seeks time to engage a new counsel although no explanation was given as to why the Plaintiff has waited till that date for engagement of the counsel. Considering the age of the Plaintiff one more opportunity was granted to the Plaintiff to lead evidence and it was directed that if on the next date of hearing, the Plaintiff failed to pay the cost or to lead PE, the suit would be dismissed. On the next date, that is, 21 st April, 2014 again the Plaintiff sought adjournment for leading evidence on the ground that the counsel had been recently engaged and he needs time to inspect the case file.

4. The learned Trial Court vide its order dated 21st April, 2014 noted that on the last date of hearing an adjournment was sought for the purpose of engaging a new counsel, considering the fact that Plaintiff is a senior citizen the adjournment was granted, however, again an adjournment is sought and it appeared that the Plaintiff was taking undue benefit of the indulgence of the Court. The previous cost had also not been paid by the Plaintiff and hence the right of the Plaintiff to lead PE was closed and the matter was listed for defendant's evidence on 2nd July, 2014. In the meantime, an application under Order 1 Rule 10 CPC was filed by the LRs of the deceased Abdul Hameed and Sughra Begum as noted above and simultaneously the Plaintiff also filed review application along with some fresh documents. On 2nd July, 2014 reply was sought and the applications were listed for arguments on 3rd September, 2014. Finally on 10th November, 2014 the applications were heard. The learned Trial Court dismissed the application under Order 1 Rule 10 CPC filed by LRs Abdul Hameed and Sughra Begum as noted above and also the Petitioner's review application.

5. The learned Trial Court noted that the right of the Plaintiff to lead evidence was not closed due to the Plaintiff submitting any fact with respect to the Plaintiff being misguided by the previous counsel rather the same was closed for the reason that after taking an adjournment on 20 th March, 2014 on the ground that the Plaintiff sought to engage a new counsel, the attorney of the Plaintiff sought adjournment on 21st April, 2014 stating that the counsel has recently been engaged. The learned Trial Court noted that there was no diligence on the part of the Plaintiff in pursuing the suit as no sufficient explanation has been given as to why counsel could not be engaged well in advance to the date of hearing, that is, 21 st April, 2014.

Even otherwise when the matter was listed for appearance of the Plaintiff witness the recent engagement of counsel is not a factor which can be termed sufficient for not producing the witness for her evidence. Since the Plaintiff did not produce its witnesses for examination on 21 st April, 2014 the right of the Plaintiff to lead evidence was closed. Thus the application for review was dismissed as no error apparent in the order dated 21st April, 2013 was found.

6. A perusal of the orders as noted above would show that the Petitioner has been unduly delaying the proceedings before the learned Trial Court. Though this Court would be rather liberal in permitting the Plaintiff to lead evidence however, in a case where repeated adjournments are sought by the Plaintiff and the Plaintiff's witnesses avoid their cross-examination, coupled with the fact that repeated cost as directed by the learned Trial Court are not paid, the learned Trial Court has no option but to close the evidence of the Plaintiff.

7. While dealing with Section 35B CPC, the Hon'ble Supreme Court in Manohar Singh Vs. D.S. Sharma & Ors. (2010) 1 SCC 53 held:

"7. Section 35-B CPC deals with costs for causing delay.

Relevant portion of the said section is extracted below: "35-B. Costs for causing delay.--(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 him in attending the court on that date, and payment of such costs, on the date next following the 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 defence by the defendant, where the defendant was ordered to pay such costs."

Section 35-B provides that if costs are levied on the plaintiff for causing delay, payment of such costs on the next hearing date shall be a condition precedent to the further prosecution of the suit by the plaintiff. Similarly, if costs are levied on the defendant for causing delay, payment of such costs on the next date of hearing shall be a condition precedent to the further prosecution of the defence of the suit by the defendant.

8. This takes us to the meaning of the words "further prosecution of the suit" and "further prosecution of the defence". If the legislature intended that the suit should be dismissed in the event of non-payment of costs by the plaintiff, or that the defence should be struck off and the suit should be decreed in the event of non-payment of costs by the defendant, the legislature would have said so. On the other hand, the legislature stated in the Rule that payment of costs on the next date shall be a condition precedent to the further prosecution of the suit by the plaintiff (where the plaintiff was ordered to pay such costs), and a condition precedent to the further prosecution of the defence by the defendant (where the defendant was ordered to pay such costs). This would mean that if the costs levied were not paid by the party on whom it is levied, such defaulting party is prohibited from any further participation in the suit. In other words, he ceases to have any further right to participate in the suit and he will not be permitted to let in any further evidence or address arguments. The other party will of course be permitted to place his evidence and address arguments, and the court will then decide the matter in accordance with law. We therefore reject the contention of the respondents that Section 35-B contemplates or requires

dismissal of the suit as an automatic consequence of non- payment of costs by the plaintiff.

9. We may also refer to an incidental issue. When Section 35-B 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 in extending the time for such payment, in exercise of its general power to extend time under Section 148 CPC. Having regard to the scheme and object of Section 35-B, it is needless to say that such extension can be only in exceptional circumstances and by subjecting the defaulting party to 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 35-B were itself levied for causing delay."

8. I find no infirmity in the order warranting interference and no blame can be put by the Plaintiff on this count on the counsel as is now being attempted. Petition and application are dismissed.

(MUKTA GUPTA) JUDGE JANUARY 12, 2015 'vn'