Non-payment of costs for cross-examination leads to forfeiture of participation rights but does not result in automatic dismissal of the suit.

JUDGMENT :

Hiranmay Bhattacharyya, J.

1. This application under Article 227 of the Constitution of India is at the instance of the defendant and is directed against orders dated January 28, 2025 and February 11, 2025, both passed by the learned Judge, 4^th Court, Presidency Small Causes Court at Calcutta in Ejectment Suit No. 281 of 2006.

2. By the order dated January 28, 2025, the order being no. 98 dated December 21, 2024 was recalled only to the extent of closing of the cross-examination of PW-1 by the defendant and a date was fixed for payment of cost and cross-examination of PW-1.

3. By the order dated February 11, 2025 the cross-examination of PW-1 was closed due to non-payment of cost by the defendant and a date was fixed for argument.

4. Learned advocate appearing for the petitioner submits that on December 21, 2024, a prayer for adjournment was made by the defendant and the learned trial judge closed the cross- examination of PW-1 by the said order. He further submits that cross- examination could not be made as the learned advocate was not available and the learned trial judge, though allowed the prayer for cross-examination of PW-1, imposed a heavy cost as a condition precedent to allow the petitioner to cross-examination the PW-1. Learned advocate appearing for the petitioner submits that the costs contemplated under the provisions of Section 35B of the Civil Procedure Code, should not be penal in nature and in support of such contention he places reliance upon a decision of the Hon’ble Delhi High Court in the case of M/s. Progressive Constructions Ltd. –Vs.- M/s. Sharma Associates and Contractors Pvt. Ltd. & Anr. reported at (2001) AIR (Delhi) 494 and the decision of the Hon’ble Supreme Court in the case of Monohar Singh –Vs.- D. S. Sharma & Ors., reported in AIR 2010 SC 508 . He, therefore, submits that the learned trial judge ought not to have imposed the cost as the prayer for adjournment was made on the ground of unavailability of the learned advocate.

5. Learned advocate appearing for the opposite party seriously disputes the submission made by the learned advocate appearing for the petitioner. He submits that the petitioner is trying to delay the hearing of the suit which is a suit for eviction under Section 6 of the West Bengal Premises Tenancy Act. He further submits that the defence of the petitioner against delivery of possession has already been struck off. He submits that on March 10, 2025, the petitioner refused to advance any argument and for which the argument of the defendants was closed by an order dated March 10, 2025.

6. Heard the learned advocates for the respective parties and perused the materials placed.

7. Record reveals that April 18, 2023 was fixed for peremptory hearing and on that date PW-1 was examined on dock in full and cross-examined in part and his evidence was deferred. Thereafter several dates were fixed for further cross-examination of PW-1. It appears from the record that on September 10, 2024 the defendant prayed for adjournment and such prayer was allowed. It further appears from the record that on May 7, 2024, the petitioner filed an application under Section 151 of the Civil Procedure Code read with Section 213 of the Indian Succession Act, which stood rejected by an order dated November 7, 2024 and by the said order, December 21, 2024 was fixed for cross-examination of PW-1. On December 21, 2024, the defendant filed an application praying for adjournment on the ground that they intend to mov