Timber Private Ltd. vs Chandu Lal

J.N. Bhat, J.—This is a revision petition against the order of this Sub-Judge Bhadrawah (Shri K.N. Kaul) whereby he has imposed costs in

the shape of penalty to the tune of Rs. 300/- on the Defendant in a civil suit of the valuation of Rs. 4341.34 then pending before him. The facts

giving rise to this revision are as follows :

It appears that when the suit was instituted in the court of Sub-Judge, the Defendant moved the District Judge Jammu for transfer of the suit

from that court. That transfer application was rejected by the District Judge as would appear from the interlocutory order of 24-8-62 in the suit.

On 22-9-62 the next hearing of the case, the Defendant wanted time for filing his written statement. Three adjournments were granted to the

Defendant to file his written statement. On, 14-11-62 the trial Judge was on leave. Three more adjournments were granted to the Defendant on

payment of nominal costs to file his written statement. Ultimately the Defendant filed his written statement on 7-6-63 when the learned Judge issued

warrants of attachment for recovery of Rs. 20/- costs awarded on the previous hearings. On 7-6-63 the Judge further ordered the parties to

produce their documents on 18-7-63. On that day the Plaintiff's counsel was not prepared to admit or deny the document produced by the Plaintiff

because the original ledger was not available. The Defendant had also produced certain documents for which the ledger was required and the

Defendant was directed to produce the ledger on 30-7-63. On 30-7-63 the trial court recorded in its order that the Defendant was not present

and therefore the counsel for the Defendant expressed his inability to record his admission or denial on the documents produced by the Plaintiff.

The court burdened the Defendant with Rs. 300/- costs by way of penalty, because the Defendant, according to the trial court, was a 'big business

concern', and the Plaintiff was a 'poor man'. It was further ordered that if the costs were not paid on the next hearing, ex parte proceedings would

be taken against the Defendant. On the next hearing of the case, i.e. 21-9-63 the court actually proceeded ex parte against the Defendant, but after

that date the case was transferred from the court of the Sub-Judge Bhadrawah to the court of the Sub-Judge Jammu where it is pending now.

I have heard the learned Counsel for the parties and reproduced in detail the various interlocutory orders of the trial court. The contention of

Mr. Suraj Prakash appearing for the applicant is that the court has acted rather vindictively, it had no right or power to inflict any penalty. Even if

the costs of Rs. 300/- are deemed not to be a penalty but as costs, the costs so imposed are out of proportion to the default committed or the

nature, volume and valuation of the suit. The learned Counsel for the Respondent tried to support the order of the trial court, though he conceded

that the amount of Rs. 300/- as costs was exorbitant, the Defendant was deliberately avoiding disposal of the suit and had taken recourse to

dilatory tactics even before the order of 30-7-63 was passed.

Mr. Suraj Prakash referred to Order 17 Rule 1 of the Code of Civil Procedure. which deals with adjournments and costs for adjournments and

referred to certain authorities namely, AIR 1930 171 (Oudh); Emperor Vs. Rustam Karanjia, ; Mohammad Bakhsh v. Shahu AIR 1942 Lah. 162

(2) and Sharafat Husain v. Shakil Ahmad AIR 1953 MP 6. The crux of these authorities is (1) that costs should be awarded against a party who is

in default but those costs should not be in the nature of a penalty or punishment. (2) the costs must be determined as occasioned by the

adjournments, and (3) The costs should not only be those costs which are taxable for that day's adjournment but should be such as can reasonably

be held to be occasioned by the adjournment and might reasonably compensate the party against which adjournment is sought.

In this case, it is true that the Defendant sought certain adjournments for filing the written statement. The written statement was not filed as

directed by the court. The court had ample powers under Order 8 Rule 10 of the CPC to pronounce judgment against the Defendant when he

failed to present the written statement in spite of the instructions of the court, or pass any other order, which the court thought fit in relation to the

suit, but not pass an order, like the one under revision which is in the nature of an expression of resentment on the part of the court.

I am afraid, the attitude of the learned Judge in passing the order under revision is far from satisfactory. The learned trial Judge has imported

extraneous considerations in his order and has' Referred to matters irrelevant to the disposal of the case. Whether the Defendant is a big business

concern and the Plaintiff a poor man is neither here nor there, and to award such a huge sum out of some feeling of wrath and naming the costs as

penalty is to say the least an unjudicial act. According to my conception of a judicial officer, a judge should never lose temper and exhibit signs of

anger against a party. Parties good, had and indifferent appear before courts and their behaviour may some times be irritating, but a judge should

never lose his equipoise and equilibrium while dealing with cases. He should bring a dispassionate view to the case and dispose of the case in a

judicial and legal manner. Courts of law have ample powers to set right recalcitrant litigants, but such power should be used judicially and not in a

manner as to show to the world and the litigant public that Judges display flashes of ill temper and under the spell of a temporary feeling of wrath

pass orders which are improper. In a recent case reported as Ishwari Prasad Mishra Vs. Mohammad Isa, Gajendragadkar J. has remarked that

Judges should use very temperate language and to do otherwise ""would show lack of experience in judicial matters or absence of judicial poise and

balance

The order under revision connotes absence of judicial poise in the Warned trial judge. Courts of law should exercise restraint and express their

views with restraint and pass only such orders which are legal and can be justified in law notwithstanding the attitude of a party to the litigation,

however irksome it may be.

The order of the Sub-Judge therefore suffers from lack of propriety, and judicial balance and is also disproportionate to the fault committed by

the Petitioner. The order is set aside.

It seems that the learned trial judge has been irritated by the previous conduct of the Defendant which has not at all been satisfactory. On 30-7-

63 also the Defendant's non-appearance and non-production of the documents was a matter for which he was liable to costs to the other side. In

my opinion, therefore, a sum of Rs. 30/- as costs would be sufficient for the default committed by the Defendant-Petitioner on 30-7-63. The

revision, therefore is, accepted and vacating the entire order of the learned Sub-judge, Bhadrawah, the Defendant is directed to pay a sum of Rs.

30/- as costs to the Plaintiff, for the Defendant's default on 30-7-63.