Manohar Singh Vs. D.S. Sharma & Ors.
AIR 2010 SC 508
Where the plaintiff has been directed to pay costs to the defendant, for seeking adjournment and causing delay, does the non-payment of costs by the plaintiff, entails the dismissal of the suit?
This question came up for discussion in the above mentioned case before their Lordships, and it was held that non-payment of costs, does not entail the dismissal of the suit. Order XVII rule (1) of the CPC provides that the court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them and may from time to time adjourn the hearing of the suit for the reasons to be recorded in writing. Rule (2) of this order provides that in every such case the court shall fix a day for the further hearing of the suit and shall make such order as to cost occasioned by the adjournment or such higher costs as the court deem fit.
Section 35 B, of CPC provides that if costs are levied on the plaintiff for causing delay, payment of such costs shall be a condition precedent on the next date of hearing, to the further prosecution of the suit by the plaintiff. On the other hand if defendant has been directed to pay for causing delay, payment of costs shall be a condition precedent on the next date of hearing to the further hearing to the further defence of the suit by the defendant.
The words “further prosecution of suit” and “further prosecution of defence” means that the defaulting party is prohibited from further participating in the suit. Such defaulting party will not be permitted to produce further evidence or address arguments. It is not the intention of the Legislature that the suit should be dismissed in case the plaintiff fails to pay costs or the defense should be struck off and suit be decreed if the defendant fails to pay costs. If the legislature intended such scheme of things they would have said so.
It cannot, therefore, be said that on nonpayment of costs, the suit has to be dismissed. In such a situation, the right of the defaulting party to further participate in the suit is closed and the other party will be permitted to place his evidence and address arguments, and the court will then decide that matter in accordance with law.
Plaintiff’s advocate is busy in another court-defendant’s witness has traveled long distance to give his evidence-plaintiff moves application for adjournment-adjournment granted on condition of payment of cost of Rs.5000-plaintiff fails to pay the cost- suit dismissed- -Order XVII Rule 1- payment of cost is precondition-order of dismissal set aside-non payment of cost does not automatically result into dismissal of suit-court has right to extend time in exceptional circumstances stating reasons- Section 35B CPC-plaintiff has no right to prosecute his suit further-defendant can lead his evidence and argue the case-however SC gives one more chance to plaintiff to pay cost.