LexMANOHAR SINGH versus D.S. SHARMA & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2009] 15 (ADDL.) S.C.R. 906
A
MANOHAR SINGH
v.
D.S. SHARMA & ORS.
(Civil Appeal Nos. 7554-7555 of 2009)
NOVEMBER 13, 2009
B
[R.V. RAVEENDRAN AND G.5. SINGHVI, JJ.]
Code of Civil Procedure, 1908 - s. 35 B - Costs for
causing delay- Non payment - Effect of- Held: Non-payment
..
of costs by party on whom it is levied results in forfeiture of the
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c right of the defaulting party to further prosecute the suit or
defence - However, other party can place his evidence and
address arguments, and then court will decide the matter- Suit
cannot be dismissed for non-payment of costs - On facts, courts
below erred in dismissing the suit of plaintiff for failure to pay
D cost levied on it for harassing defendants and its witness by
seeking repeated adjournments - Thus, order of courts below
set aside - Suit restored to the file, forfeiting plaintiff's right to
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cross-examine the defence along with other conditions.
The question which arose for consideration in this
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appeal is whether the courts below were justified in
dismissing the suit of the plaintiff for non-payment of cost
levied on the plaintiff for harassing the defendants and its
witness by seeking repeated adjournments.
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Allowing the appeals, the Court
F
HELD: 1.1. Section 358 of Code of Civil Procedure,
'{
1908 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
G 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. Regarding the meaning of the
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words "further prosecution of the suit" and "further
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prosecution of the defence", if the Legislature intended
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MANOHAR SINGH v. D.S. SHARMA & ORS.
907
that the suit should be dismissed in the event of non-
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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. Legislature stated in the rule that
payment of costs on the next date shall be a condition
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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
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defence by the defendant (where the defendant was
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ordered to pay such costs). This would mean that if the
costs levied were not paid by the party on whom it is c
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
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place his evidence and address arguments, and the court
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will then decide the matter in accordance with law. [Para
5] [911-D-H; 92-A-B]
1.2. When s. 358 states that payment of such costs on
the date next following the date of the order shall be a
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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
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said provision will not come in the way of the court, in its
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discretion extending the time for such payment, in exercise
of its general power to extend time u/s. 148 CPC. Having
regard to the scheme and object of s. 358, 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 G
costs, having regard to the fact that such costs u/s. 358
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were itself levied for causing delay. [Para 6] [912-8-E]
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1.3. It is evident from Rule 1(2) proviso (e) of Order 17
CPC that where a witness is present in court but the other
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SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A side is not ready to cross-examine the witness, the court
can dispense with his cross-examination. But where a
genuine and bona fide request is made for adjourment,
_instead of resorting to forfeiture of the right to cross-
examine, the court may grant time by levying costs. [Para
B 7) (913-F]
1.4. A conspectus of RuleExcerpt shown. Read the full judgment & AI analysis in Lexace.