Back
2016 Supreme(HP) 2465
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CHANDER BHUSAN BAROWALIA, J.
Paras Ram & others - Petitioner
Versus
State of H.P. & others - Respondent
CMPMO No. 104 of 2016
Decided on : 17-10-2016
Advocate Appeared:
For the Petitioner:Mr. I.D. Bali, Sr. Advocate, with Mr. Virender Bali, Advocate.
For the Respondent: Mr. Virender K. Verma, Addl. AG, with Mr. Pushpinder Jaswal
The main legal principle established is that the payment of costs as a condition precedent for further proceedings, as mandated by Section 35B of the CPC, is mandatory and non-compliance would have penal consequences.
Headnote:
CPC - Impleading of Defendants - Section 151 CPC, Order 1 Rule 10(2) CPC - Section 35B of CPC - [SUMMARY]
Fact of the Case:
The petitioner filed a suit seeking injunction under Sections 38 and 39 of the Specific Relief Act. The court allowed the impleading of new defendants subject to payment of costs. The newly added defendants failed to deposit the entire amount of costs, leading to a dispute over the continuation of their defense.
Finding of the Court:
The court found that the imposition of costs was a condition precedent for further proceedings, and the newly added defendants were required to deposit the entire amount of costs as per Section 35B of the CPC.
Issues: The main issue was whether the newly added defendants could defend the case after depositing only a part of the imposed costs.
Ratio Decidendi: The court relied on Section 35B of the CPC, which mandates that the payment of costs is a condition precedent for the further prosecution of the defense. The court also referred to the decision in Anand Parkash vs. Bharat Bhushan Rai and another, AIR 1981 Punjab and Haryana 269 (Full Bench), which emphasized the mandatory nature of Section 35B.
Final Decision: The court allowed the revision petition and ordered the newly added defendants to deposit the entire amount of costs within four weeks, failing which they would not be allowed to join the proceedings.
JUDGMENT :
CHANDER BHUSAN BAROWALIA, J.
1. The present petition is maintained by the petitioners/plaintiffs (hereinafter referred to as =the petitioners') against the order of learned Civil Judge (Sr. Division) Court No. 1, Mandi, H.P., passed in CMA No. 164-VI/15 in Civil Suit No. 10933/2013 (60-I/12), dated 19.12.2015, whereby the learned Court dismissed the application of the petitioners under Section 151 CPC for striking off the defence of newly added defendants No. 3, 4, 5, 6 and 7 for nonpayment of costs vide order dated 09.10.2014, whereunder the application under Order 1, Rule 10 (2) CPC was allowed subject to payment of costs of Rs.10,800/- (rupees ten thousand eight hundred).
2. Briefly stating the facts giving rise to the present petition are that the petitioner instituted a suit against the respondents/defendants (hereinafter referred to as =the respondents') seeking permanent prohibitory and mandatory injunction under Sections 38 and 39 of the Specific Relief Act, wherein it was averred that defendants may be restrained permanently from raising construction of water tank nearby/over the source of water canal (=kuhul') on the land comprised in Khasra No. 528, situated in Mohal Sajha/522, Sub Tehsil Aut, District Mandi, H.P. Subsequently, on 14.08.2012, the learned Court in the above mentioned suit directed the parties to maintain status quo qua nature and construction of water channel on the water source. As per the petitioner, when the case was at the stage of arguments, an application under Order 1, Rule 10 (2) CPC read with Section 151 CPC, for impleading the applicants therein as defendants, was filed. The same was opposed, however, the learned Court below allowed the application subject to payment of costs of Rs.10,800/-. The costs was not deposited and on 12.01.2015, the counsel for the newly added defendants stated in the Court that only applicants/defendants 5,12,32,38 and 46 want to contest the case and only these defendants be allowed to deposit costs of Rs.1000/- @ Rs.200/- each. The plea was accepted by the learned Court below and applicants/defendants No. 5,12,32,38 and 46 were added as defendants and they were also allowed to deposit costs @ Rs.200/- each. Consequently, the petitioner, by way of an application under Section 151 CPC, prayed for striking off the defense of newly added defendants succinctly on the ground that the order dated 09.10.2014, passed in CMA No. 145/14, was a conditional order and the non-fulfilment thereof has rendered the order inoperative. However, the learned Court below did not accept the application and dismissed the same. Resultantly, defendants No. 5, 12, 32, 38 and 46 were allowed to defend the case after depositing costs of Rs.200/- each. Hence the present petition.
3. The learned counsel for the petitioner has argued that the order passed by the learned Court below is required to be interfered with, as imposition of costs was a condition precedent for further proceedings of the case and as the defendants have not deposited the imposed costs, that is, Rs.10,800/-, the defence of the defendants was required to be closed. Conversely, the learned counsel for the respondents has argued that the contesting defendants have deposited the costs of their share and, therefore, there is no illegality in dismissing the application of the present petitioners. In rebuttal, the learned counsel for the petitioner has relied upon a decision in Anand Parkash vs. Bharat Bhushan Rai and another, AIR 1981 Punjab and Haryana 269 (Full Bench).
4. Heard. To appreciate the rival contentions of the parties, I have gone through the record in detail.
5. Order dated 09.10.2014, passed by the learned Court below, is extracted in extenso as under:
?This order shall dispose off an application under order 1Rule 10 of the Code pf Civil Procedure having been moved by the 54 applicants for adding them as defendants in the present suit. It is averred by the applicants that the plaintiffs have filed the suit for
