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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Vikram Aggarwal, J.
Mamo Devi & Ors. – Appellants
Versus
Ajmer Singh – Respondent
CR No. 1560 of 2023
Decided On : 13-09-2023
defence - Specific Performance of Agreement to Sell - Section 35-B CPC, Order 8 Rule 1 A CPC - Section 35-B CPC, Order 8 Rule 1 A CPC - The court discussed the relevant provisions of Section 35-B CPC and Order 8 Rule 1 A CPC. The court referred to the judgment of the Hon'ble Full Bench in the case of Shri Anand Parkash Vs. Shri Bharat Bhushan Rai and another (1981) AIR(Punjab) 269 and the case of Prem Sagar Vs. Phul Chand, 1983 AIR (Punjab and Haryana) 385, to determine the consequences of non-payment of costs and non-filing of documents relied upon in the written statement. 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.
Fact of the Case:
The respondent filed a suit for possession by way of specific performance of agreement to sell. The petitioners-defendants failed to pay costs and produce documents relied upon in the written statement, leading to the striking off of their defence.
Finding of the Court:
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.
Issues: Non-payment of costs and non-production of documents relied upon in the written statement.
Ratio Decidendi: 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.
Final Decision: The court dismissed the revision petition, upholding the order striking off the defence of the petitioners-defendants.
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 respondent-plaintiff (Annexure P-3) seeking a direction to the petitioners-defendants to produce documents relied upon by them in the written statement. The petitioners-defendants were called upon to file reply to the said application. However, since the same was not filed nor were costs paid, the defence of the petitioners-defendants was struck off, issues were framed and the matter was posted for evidence of the respondent-plaintiff.
5. After the evidence of the respondent-plaintiff was closed, the trial Court, vide order dated 30.01.2019 (Annexure P-6) adjourned the case for arguments observing that the defence of the petitioners-defendants had already been struck off.
6. Under the circumstances, an application for recalling/reviewing the order dated 13.10.2017 was filed, which was also dismissed vide order dated 11.01.2023, leading to the filing of the present revision petition.
7. I have heard learned counsel for the parties and have perused the paper book.
8. On behalf of the petitioners, it was submitted that the trial Court gravely erred in striking off the defence of the petitioners-defendants on account of non-filing of reply to the application. It was submitted that written statement was duly filed and only the reply to the application for production of the documents referred to in the written statement was not filed and, therefore, at best, the petitioners-defendants could not have been permitted to lead evidence qua the said documents. It was submitted that the trial Court could not have struck off the defence of the petitioners-defendants in the main case. It was submitted that even the petitioners-defendants were not aware of this since the issues had been framed and even the onus to prove certain issues had been placed upon the petitioners-defendants. It was contended that only when the evidence of the respondent-plaintiff was closed and the trial Court abruptly posted the matter for arguments, the petitioners-defendants realized the manner in which the order was being interpreted. It was contended that the order is not sustainable and deserves to be set aside.
9. On the other hand, it was contended on behalf of the respondent that there is no illegality in the impugned order because on account of nonpayment of costs, the defence was struck off. It was contended that as per the provisions of Section 35-B CPC, once the costs are not paid, the defence can be struck off. It was submitted that the trial Court proceeded in accordance with law in striking off the defence of the petitioners-defendants and that there is no illegality in the impugned orders. Learned counsel placed reliance upon the judgment passed by a Full Bench of this Court in Civil Revision No.1878 of 1978 titled as'Shri Anand Parkash Vs. Shri Bharat Bhushan Rai and another', (198
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 the provisions of Section 35-B CPC and Order 8 Rule 1 A CP....
A party's failure to pay ordered costs results in the mandatory dismissal of their defense, affirming the strict adherence to procedural compliance under the Civil Procedure Code.
Non-payment of costs for cross-examination leads to forfeiture of participation rights but does not result in automatic dismissal of the suit.
Non-payment of costs can result in forfeiture of the right to further prosecute the suit or defence.
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