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VIKRAM AGGARWAL
Mamo Devi – Appellant
Versus
Ajmer Singh – Respondent
Key Points: - Non-payment of costs and non-production of documents relied upon in the written statement can lead to the striking off of the defence as per Section 35-B CPC and Order 8 Rule 1 A CPC [judgement_subject]. - The court held that the defence of the petitioners-defendants was liable to be struck off on account of non-payment of costs as per the provisions of Section 35-B CPC and Order 8 Rule 1 A CPC [judgement_subject]. - Section 35-B CPC states that if a party fails to take a required step or obtains an adjournment, the court may order them to pay costs, and payment of these costs is a condition precedent to the further prosecution of the defence by the defendant (!) . - Order 8 Rule 1 A CPC mandates that a defendant relying on a document in support of their defence must produce it in court when presenting the written statement (!) . - A Full Bench of the High Court held that where costs have been deliberately not paid, the defence on the whole would be struck off (!) . - The Full Bench in Shri Anand Parkash Vs. Shri Bharat Bhushan Rai and another held that if costs are not paid as a result of circumstances beyond the control of the defaulting party, the court may exercise its power under Section 148 of the CPC (!) . - In Prem Sagar Vs. Phul Chand, a Full Bench held that if the issue of costs is not raised on the date immediately after the date on which costs were imposed and the defence is not struck off, the issue cannot be raised subsequently if proceedings are permitted to continue (!) . - The court found that the defence of the petitioners-defendants was rightly struck off in accordance with the provisions of Section 35-B CPC and Order 8 Rule 1 A CPC [judgement_subject]. - The revision petition was dismissed, upholding the order striking off the defence of the petitioners-defendants [Final Decision]. - The court noted that the penalty for non-payment of costs imposed for non-filing of a reply to an application, despite the written statement being filed, seemed drastic but had to be imposed based on the ratio laid down by the Full Bench in Shri Anand Parkash [23000810040015].
JUDGMENT
Vikram Aggarwal, J. (Oral) - The present revision petition assails the order dated 13.10.2017 (Annexure P-5) passed by the Additional Civil Judge (Senior Division), Kaithal, vide which defence of the petitioners was struck off and the order dated 11.01.2023 (Annexure P-9), vide which the application seeking recall/review of the said order was dismissed.
2. A suit for possession was filed by the respondent/plaintiff-Ajmer Singh by way of specific performance of agreement to sell dated 07.08.2012. It was the case of the respondent-plaintiff that the petitioners-defendants had agreed to sell 4 Kanals 11 Marlas of land situated in Village Kheri Matarwa (fully described in the plaint), by way of a registered agreement to sell dated 07.08.2012. The total sale consideration was Rs. 8,00,000/- out of which Rs. 4,75,000/- was paid as earnest money. The date of execution of the sale deed was fixed as 07.05.2013. Since the sale deed was not executed, the suit was filed by the respondent-plaintiff.
3. The petitioners-defendants duly appeared before the trial Court and filed their written statement (Annexure P-2).
4. During the course of the proceedings, an application was filed by the res
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