Smt. Pushpa Wati Nayyar (Died) and Others vs Kundan Lal and Others

N.C. Jain, J.—This appeal has been directed against the judgment and decree of the Subordinate Judge Ist Class, Amritsar, dated 15.1.1982 by which the suit of the plaintiffs for specific performance of an agreement of sale dated 5.5.1980 has been decreed. Defendant No. 1 Pushpa Wati Nayyar who died during the pendency of the appeal and who is survived by her sole legal heir Tilak Raj Bedi filed an appeal before this Court.

This Court need not either go into the detailed narration of facts or law as the decision of the case centres round the question whether the trial Court has acted within its jurisdiction in striking off the defence of the defendant or not.

After hearing the learned counsel for the parties, this Court is of the view that the trial Court has committed an error in striking off the defence u/s 35B of the CPC (for short the Code''). A look at the various orders on the judicial file of the case would make it clear that the defence of the defendant was struck off by resorting to the provisions of Section 35B of the Code on a subsequent date of hearing and not on the date when the costs were to be paid. Reproduction of the following orders would be advantageous:

"Present: Counsel for the parties.

Written statement and reply of application not filed by the defendants. Requested for date. Be filed on 2.12.1991 subject to cost of Rs. 25/-.

Sd/- S.J. ASR 24.11.81

Present: counsel for the parties. Written statement and reply of application not filed by the defendants. Requested for date, which is not opposed by the other party. Cost of Rs. 25/- also not paid. Written statement be filed on 8.12.1981.

Sd/- S.J. ASR 2.12.81.

Present: Counsel for the parties. Counsel for the deft, states the will file w/s after some time. Be called again.

Sd/-S.S. Kanwal Sub Judge 8.12.1981.

Present: Counsel for the plaintiff. Counsel for the deft, is present. No. w/s has been filed nor costs paid by deft. 1 & 2. Defence of deft. No. 1 & 2 is therefore struck off. For a reply of application of Shri G.R. Tuteja to come up on 15.12.1981.

Sd/-S.S. Kanwal, SJ 2.30 P.M. 8.12.81

Present: Shri Ramesh Chaudhary proxy for counsel for the plaintiff. Counsel for the defendant.

Arguments heard partly. Counsel for the plaintiff is stated to be busy in the Sessions Court. For remaining arguments, to come up on 15.1.1982.

Sd/- S.S. Kanwal, SJ. 14.1.1882.

The perusal of the afore-mentioned orders passed by the trial Court makes it Clear that the defence of the defendant was not struck of on 2.12.1981 when the case was adjourned to 8.12.1981. On 8.12.1981 the costs were not demanded and the case was again adjourned. The trial Court should have struck off the defence only on 2.12.1981 and not on another date. In these circumstances the party would be deemed to have waived its right of claiming costs and, in any case, the party defaulting in the payment of costs could not be debarred on the subsequent date from prosecuting the suit or the defence as the case may be. The object of Section 35B of the Code is not to punish the party against whom costs were awarded and no party can be allowed to agitate or make grievance of non-payment of costs on any subsequent date. Had the costs been demanded on 2.12.1981 and not paid, the defence of the defendants should have been struck off on that very date. The aforementioned principles of law have been laid down in Prem Sagar and Ors. v. Phul Chand (1983) 85 PLJ (F.B.), Sher Singh and Others Vs. Mehma and Another, , Safari Carriers (India Regd.) and Another Vs. United India Insurance Company Limited and Another, and Assa Nand v. Harish Kumar and Ors. (1982) 84 PLR 582.

For the reasons mentioned above, the appeal is allowed, the judgment and decree of the trial Court is set aside and the defendants would be allowed to have a decision on merits in the light of the defence put up by them. The parties would be entitled to lead evidence in accordance with law. the prayer made in Two applications be reagitated before the trial Court.

Since a long time has lapsed, the trial of the suit be expedited and the same be concluded within six months of the appearance of the parties, if possible.

The parties through their counsel are directed to appear before the trial Court on 9.3.1994. No costs.