Raj Kumar vs Girdharilal

J.V. Gupta, J.—This petition is directed against the order of the trial Court dated 16th Aprl. 1986 whereby the suit was dismissed u/s 35B of the Civil P.C. for non- payment of costs of Rs. 15/-.

The plaintiff-petitioner filed a suit for a decree of permanent injunction restraining defendant Girdhari La1 from asserting any right, title or interest on motor or cycle No. PNC. 8072 or taking possession thereof except in due course of law. The suit was filed on 18th Jan. 1986. On 20th Mar. 1986 the defendant moved an application for an order directing the plaintiff to hand over the motor-cycle to him. Notice of this application was given to the plaintiff and the case was fixed for 4th Aprl. 1986 for its reply by the plaintiff. On 4th Aprl. J986 the plaintiff failed to file any reply and the case was adjourned to 16th Aprl. 1986 for reply, subject to payment of Rs. 15/-as costs. On that date neither the plaintiff appeared in person nor he sent the costs to his counsel for payment. As a result thereof the counsel for the plaintiff made a statement at 3 p.m. that since the plaintiff had not turned up the costs could not be paid. On this statement the learned trial Court, in view of the provisions of Section 35B of the Civil P.C. not only disposed of the application filed by the defendant but dismissed the plaintiffs suit as well.

Learned counsel for the plaintiff-petitioner submitted that at the most for nonpayment of the costs by the plaintiff, the application filed by the defendant could be disposed of, but under the circumstances the plaintiffs suit could not be dismissed on that account. In support of his contention he referred to Hakmi and Others Vs. Pitamber and Another, .

After hearing the learned counsel, I find force in the contention raised on behalf of the petitioner. The costs were awarded for not filing reply to the application and, therefore, for non-payment of the costs, only the application could be decided, but the suit as such could not be dismissed on that account. This proposition was settled by this Court in the judgment referred to above, that in case there is some miscellaneous application, disposal of which does not delay disposal of the main suit, the right to prosecute or defend the main suit cannot be taken away in view of the provisions of Section 35B of the Civil P.C.

Consequently, this petition succeeds, the impugned order is set aside and the case is sent back for deciding the suit on merits in accordance with law. However, as regards the application filed by the defendant, the trial Court may pass appropriate orders after hearing both the parties, as may be justified on the facts and circumstances of the case. The parties have been directed to appear in the trial Court on 20th Oct. 1987. The record of the case be sent back forthwith.

In order to expedite the hearing of the suit, it is further directed that the parties will lead evidence at their responsibility. However, the summons may be given, if so desired, as provided under Order 16 Rule 7A of the Civil IP.C.