Inspite of sufficient service no one has appeared on behalf of contesting respondent hence only the arguments of learned counsel for the petitioner were heard.
Respondents nos. 3 to 9 M/s Aditi Products and its partners borrowed some amount from the petitioner-bankand defaulted in its payment alongwith interest. Accordingly, petitioner filed Original suit no.632 of 1990 against them for recovery of the amount before Civil Judge (Senior Division), Saharanpur. Decree for an amount of about Rs.4.7 lacs was sought. The suit was transferred for disposal to the court of 1st Additional Civil Judge (Senior Division), Saharanpur. In the suit on 4.5.1993 an order was passed adjourning the suit to 17.5.1993 and directing the plaintiff to pay all the costs by the next date and produce the evidence on the said date. On 17.5.1993 counsel for the plaintiffs-petitioners was not available at Saharanpur as he had gone to Delhi hence adjournment of the suit was sought. The trial court refused to adjourn the case and dismissed the same on 17.5.1993.
Thereafter an application for setting aside the said order and restoration of the suit was filed by the plaintiff-petitioner under Order-9 Rule 9 C.P.C. which was registered as Misc. Case no. 736 of 1993. Civil Judge (Senior Division)/Judge Small Causes, Saharanpur rejected the said application on 18.3.1997 holding that the order dated 17.5.1993 sought to be set aside was an order under Order 17 Rule 3 C.P.C. hence that would have to be treated as order on merit and for that reason restoration application under Order-9 Rule-9 C.P.C. was not maintainable. Copy of the said order is Annexure-8 to the writ petition. Against the said order Misc. Civil Appeal no.73 of 1997 was filed which was dismissed by IInd Additional District Judge, Saharanpur on 28.4.1998 hence this writ petition.
Both the courts below have sacrificed nay massacred the justice at the altar of frivolous non-existent technicalities. It is stated in para-4 to 7 of the writ petition that till 17.5.1993 defendants had not made endorsement of admission or non-admission on the documents filed by the plaintiff-petitioner and oral evidence had not begun and an application for the said purpose had been filed by plaintiff- petitioner on which 17.5.1993 was the date fixed. In para-8 of the writ petition it has been stated that on 17.5.1993 clerk of petitioner's counsel filed application for adjournment. In the impugned order it is mentioned that on 4.5.1993 the case was adjourned to 17.5.1993 on the condition that on 17.5.1993 plaintiff should deposit the entire costs and should adduce its evidence and that if it was not done then the suit would be deemed to have been dismissed. The trial court also referred to Section 35-B C.P.C. regarding imposition of special costs which according to the trial court had earlier been imposed on the plaintiff. The heading of the said Section is 'Costs for causing delay'.
As far as the direction in the order dated 4.5.1993 to the effect that in case of non-compliance of the condition mentioned therein, suit would stand automatically dismissed is concerned, it is highly doubtful as to whether legally such a drastic direction could be issued. Secondly inspite of such direction court by virtue of Section 148 C.P.C. retained the jurisdiction not to dismiss the suit and the time could be extended. Such types of orders are only in terrorum.
Under Order XVII Rule 3 C.P.C. it is provided as follows:
O XVII R.3 Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,-
(a) if the parties are present, proceed to decide the suit forthwith, or
(b) if the parties are, or any of them is, absent, proceed under rule-2] On 17.5.1993 the court could either dismiss the suit in default or could decide the same on merit after adverting to the pleadings etc. and permitting the defendant to adduce the evidence. The trial court did not opt for the second contingency. Accordingly dismissal order dated 17.5.1993 will have to be treated as simply an order of dismissal in default under Order IX Rule 8 C.P.C. hence restoration application was perfectly maintainable under Order IX Rule 9 C.P.C.
This aspect has thoroughly been examined in a recent authority of the Supreme Court reported in Manohar Singh vs. D.S.Sharma A.I.R. 2010 S.C. 508. In the said decision provisions of Section 35-B, 148 and Order 17 C.P.C. have been considered. Paragraphs 5 and 6 of the said authority are quoted below:-
"5. Section 35 B of CPC deals with costs for causing delay. Relevant portion of the said section extracted below:
"35B. 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.
xxxxxxx xxxxxxx"
Section 35B 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. 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 plaintiff, or that the defence should be struck off and 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, 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 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 35B contemplates or requires dismissal of the suit as an automatic consequence of non-payment of costs by plaintiff.
6. We may also refer to an incidental issue. When section 35B 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 extending the time for such payment, in exercise of its general power to extend time under section 148 of CPC. Having regard to the scheme and object of section 35B, 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 35B were itself levied for causing delay."
Moreover an order dismissing a suit/case, otherwise than on merit, can never be treated to be an order on merit. However, in certain contingencies an order on merit may be treated to be order in default/ex-parte e.g. When case is dismissed on merit but in the absence of applicant or his counsel.
Accordingly, writ petition is allowed with cost. Both the impugned judgments and orders are set aside.
The plaintiff-petitioner has made out a good cause in the restoration application hence the same is allowed. Order dated 17.5.1993 dismissing the suit is set aside and the suit is restored. Plaintiff-petitioner shall appear before the Trial court on 9.5.2011 alongwith certified copy of this judgment. All the previous costs imposed upon the petitioner shall stand adjusted in the costs of this writ petition.
However, as no one has appeared on behalf of contesting defendants-respondents in this writ petition hence before proceeding further the trial court shall issue notice to them.
Order Date :- 17.3.2011 RS