Gurdial Singh vs Atma Singh
2021 Latest Caselaw 3825 HP

                                   1

   IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.




                                                          .

                ON THE 11th DAY OF AUGUST, 2021
                              BEFORE





            HON'BLE MR. JUSTICE AJAY MOHAN GOEL
    CIVIL MISC. PETITION MAIN (ORIGINAL) No. 313 of 2020
Between:-
SH. NAMINDER SINGH, SON OF SH.




GURDIAL SINGH, SON OF SH.
LABH SINGH, RESIDENT OF
KHURWAIN, MAUJA MOMNIAR,
TEHSIL BANGANA, DISTRICT UNA,

H.P.

                                                  ....PETITIONER
(BY MR. G. C. GUPTA, SENIOR ADVOCATE, WITH MS. MEERA


DEVI, ADVOCATE)
AND




SH. ATMA SINGH, SON OF SH.
BARFI RAM, SON OF SH. NATHU,





RESIDENT OF DARARLI UPERLI,
TEHSIL    BARSAR,    DISTRICT
HAMIRPUR, H.P. AT PRESENT





RESIDING      IN     VILLAGE
KHURWAIN, MAUJA MOMNIAR,
TEHSIL BANGANA, DISTRICT UNA,
H.P.
                                                  ...RESPONDENT
(BY M/S DHEERAJ KUMAR VASHISHT & PAWAN SHARMA,
ADVOCATES)
Whether approved for reporting? Yes.
   __________________________________________________________




                                         ::: Downloaded on - 31/01/2022 22:51:45 :::CIS
                                       2


             This petition coming on for orders this day, the Court passed the




                                                                     .
following:





                                ORDER

By way of this petition filed under Article 227 of the

Constitution of India, the petitioner herein challenges order dated

23.09.2019, passed by the Court of learned Senior Civil Judge, Court No. 1,

Una, H.P. in Case Registration No. 310/2010, titled as Naminder Singh Vs.

Atma Singh, vide which, the suit filed by the present petitioner has been

dismissed by the learned Court below on account of non-payment of costs

imposed upon the present petitioner by the High Court in proceedings

initiated under Article 227 of the Constitution of India and also for setting

aside order, dated 18.02.2020, passed by the said Court, vide which, an

application filed for recalling/review of order, dated 23.09.2019, has been

dismissed.

2. Brief facts necessary for the adjudication of the present petition

are that the petitioner herein had earlier approached this Court under Article

227 of the Constitution of India against orders, dated 19.08.2015 and

28.08.2015, passed in the Civil Suit, which suit now stands dismissed by

way of impugned order. CMPMO No. 394 of 2015, titled as Naminder Singh

Vs. Atma Singh was dismissed by this Court vide judgment dated 18 th May,

.

2016 (Annexure P-1) in the following terms:

"22. Having said so, this Court is of the firm

view that the endeavour on the part of the petitioner clearly appears to be to delay the outcome of the decisions or else the petitioner would not have filed

such frivolous application which has unnecessarily consumed valuable time of this Court. Not only there is no merit in this petition, but the same otherwise

amounts to abuse of the process of the Court and is

accordingly dismissed with costs of Rs.30,000/- to be paid by the petitioner to the opposite side on or before the next date of hearing."

3. It appears that the costs so imposed upon the petitioner by this

Court in the said judgment has not been paid in terms thereof. It further

appears that when learned Trial Court resumed the hearing of the Civil Suit,

an objection was taken by the defendant therein that on account of non-

payment of the said costs, proceedings cannot be heard any further and the

suit be dismissed. Learned Trial Court on 26.08.2017, on the said issue

passed the following order:

"The point formulated by this Court on previous date of hearing came to be considered and

after hearing the parties it does not lead to dismissal

.

of suit for want of payment of cost of Rs.30,000/-

imposed by Hon'ble High Court of H.P., although defendant has separate remedy to apply for recovery

of such amount by appropriate proceedings. Thus, it be listed for consideration on all pending applications on 11.09.2017"

However, thereafter again on a similar objection taken by the defendant, the

impugned order has been passed by the learned Trial Court on 23.09.2019,

vide which, the suit itself has been dismissed by the learned Court below on

count of non-payment of costs imposed by this Court in CMPMO No. 394 of

2015. Thereafter, a Review Petition filed for recalling of the said order has

also been dismissed by the learned Court below on 18.2.2020.

4. Learned Senior Counsel for the petitioner has argued that the

impugned orders are not sustainable in the eyes of law, as while dismissing

the suit, learned Trial Court has erred in not appreciating that there was no

order passed by this Court while dismissing the earlier CMPMO No. 394 of

2015 that in the event of non-payment of the cost to the defendant, the suit

shall not proceed. He further submitted that the defendant was having

remedy with regard to the implementation of the order passed by this Court

qua payment of costs and it was not as if the Trial Court was to act as an

Executing Court of the order passed by the High Court under Article 227 of

.

the Constitution of India. Learned Senior Counsel further submitted that in

fact learned Court below has exercised powers not vested in it while

dismissing the suit vide impugned orders and, therefore, the petition be

allowed by quashing the impugned orders and directing the hearing of the

suit on merit.

5. Opposing the petition, learned counsel for the respondent

submits that the petitioner on one pretext or the other has been delaying the

hearing of the suit and it was in this background that the costs stood imposed

upon the petitioner by this Court in the earlier proceedings. While referring

to paragraph No. 22 of the judgment passed by this Court in the earlier lis,

learned counsel further submits that it was categorically mentioned therein

by the Court that the costs so imposed, be paid to the opposite party on or

before the next date of hearing. According to him, the next date of hearing

was referred to in the proceedings before the learned Trial Court and in the

absence of this part of the order being not complied with, learned Trial Court

was bound to dismiss the suit and, therefore, the impugned orders do not call

for any interference.

6. I have heard learned counsel for the parties and also gone

.

through the impugned orders as well as other documents appended with the

petition.

7. It is not in dispute that the earlier petition filed by the present

petitioner under Article 227 of the Constitution of India stood dismissed by

this Court vide judgment, dated 18th May, 2016, in which, the cost was also

imposed upon the petitioner. However, in the considered view of this Court,

it was not within the domain of the learned Trial Court to have had

dismissed the Civil Suit so filed by the petitioner for non-payment of costs,

so imposed by the High Court. I say so for the following reasons:-

8. The petition which was filed by the petitioner under Article 227

of the Constitution of India did not find merit with the High Court and the

same was dismissed on merit. It was while dismissing the said petition on

merit that the Court imposed costs of Rs.30,000/-upon the petitioner. In

other words, it is not as if some relief was granted to the petitioner in lieu of

payment of costs and on account of non-deposition of the costs, so imposed

by the Court, the petitioner was not entitled to have that relief enforced by

the learned Trial Court. In case the petitioner was not abiding by the order

passed by this Court with regard to non-deposition/non-payment of costs so

imposed, the respondent/defendant was having remedy to have had the order

.

executed, in accordance with law, but in the considered view of this Court,

that could not have been a ground for the learned Trial Court to have had

dismissed the Civil Suit itself, especially when there was no such order

passed in the judgment by this Court that in the event of non-payment of the

costs, the suit shall be dismissed by the learned Trial Court.

9. As far as the reference of the date in paragraph No. 22 of the

judgment, dated 18th May, 2016 is concerned, in the considered view of this

Court, that was only a time limit set by the Court as to within what period

the amount was to be paid by the petitioner, so that the petitioner

subsequently could not take a plea that there was no time limit fixed by the

Court for payment of the costs.

10. There is one more aspect of the matter, upon which the Court

would like to dwell. After dismissal of the earlier petition filed by the

petitioner under Article 227 of the Constitution of India, when initially an

objection was taken by the defendant before the learned Trial Court praying

for dismissal of the suit on account of non-payment of the costs, learned

Trial Court on 26.08.2017, passed an order, vide which, it was observed by

the Court that non-deposition of costs does not leads to dismissal of the suit

and the defendant was having a separate remedy for recovery of such

.

amount by way of appropriate proceedings. It is not in dispute that said order

passed by the leaned Trial Court on 26.08.2017 was not challenged by the

defendant. In other words, said order attained finality. That being the case, it

is not understood as to how the same Court itself could have sat upon its

earlier order, though by another Presiding Officer and entertained similar

request of the respondent, which earlier stood rejected by the same Court.

This Court deprecates this kind of practice, because the Court works in

continuity and change in Presiding Officer per se does not means that the

order passed by the earlier Presiding Officer looses efficacy, until and unless

the same is assailed by way of appropriate proceedings and altered, modified

or set aside.

11. In view of the discussions held hereinabove, the petition is

allowed. Order dated 23.09.2019, passed by the Court of learned Senior

Civil Judge, Court No. 1, Una, H.P. in Case Registration No. 310/2010, titled

as Naminder Singh Vs. Atma Singh, vide which, the suit filed by the present

petitioner has been dismissed by the learned Court below on account of non-

payment of costs imposed upon the present petitioner by the High Court in

proceedings initiated under Article 227 of the Constitution of India and order

dated 18.02.2020, passed by the said Court, vide which, an application filed

.

for recalling of order, dated 23.09.2019, has been dismissed, are quashed and

set aside. Miscellaneous applications, if any, also stand disposed of.

12. At this stage, learned counsel for the parties submit that this

Court may make an observation that the Civil Suit be decided by the learned

Trial Court within a time bound period. It is observed that subject to Roster,

an endeavour shall be made by the learned Court below to decide the Civil

Suit by 31st March, 2022.

Parties through their learned counsel are directed to appear

before the learned Court below on 6th September, 2021.

(Ajay Mohan Goel) Judge August 11, 2021

(bhupender)