Non-payment of costs can result in forfeiture of the right to further prosecute the suit or defence.

JUDGMENT

Alka Sarin, J. (Oral) - The present revision petition has been filed under Article 227 of the Constitution of India challenging the order dated 27.05.2022 (Annexure P-3) whereby the application filed by the plaintiff-petitioner for striking off the defence of defendant-respondent No.1 for non-deposit of the costs has been dismissed.

2. The brief facts relevant to the present lis are that an application was filed by the plaintiff-petitioner under Order 39 Rule 2-A read with Section 151 of the Code of Civil Procedure, 1908 (CPC) in the proceedings. On 27.02.2019 PW3-Hoshiyar Singh, PW4-Nonihal Singh and PW5-Lal Chand were present for their examination-in-chief. Their cross-examination was deferred as counsel appearing for defendant-respondent No.1 submitted that he was busy before other Court and the witnesses were discharged and bound down for 11.03.2019 subject to payment of costs of Rs.200/- each to be paid by defendant-respondent No.1 to the witnesses. Thereafter, on the next two dates i.e. 11.03.2019 and 29.03.2019, the file was not taken up as the learned Magistrate was on casual leave. On 15.05.2019 PW5-Lal Chand was present and examined without any objection being raised by learned counsel appearing on behalf of the plaintiff-petitioner therein. The remaining witnesses did not come present despite being bound down. However, it is noticed in the order dated 15.05.2019 that the costs would be paid on the next date of hearing. On 26.07.2019 no PW was present and the matter was adjourned to 09.09.2019 for evidence of the plaintiff-petitioner. Costs were also to be paid on that day. Yet again on 09.09.2019 no PW was present and the counsel for the plaintiff-petitioner closed his evidence with a request to tender documentary evidence and the matter was thereafter adjourned to 25.09.2019 for tendering documentary evidence. Vide order dated 25.09.2019 the case was adjourned to 19.10.2019 for evidence of the defendant-respondents at their own responsibility. On 19.10.2019 an application was filed by the plaintiff-petitioner for striking-off the defence of the defendant-respondent No.1 for non-payment of costs. Reply to the said application was filed. The Trial Court vide a detailed order dated 27.05.2022 dismissed the said application. Hence, the present revision petition.

3. Learned counsel for the plaintiff-petitioner would contend that payment of costs was a condition precedent and hence, defence ought to be struck off. Learned counsel for the plaintiff-petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of Manohar Singh Vs. D.S. Sharma & Anr. [2010 (1) SCC 53] to contend that the payment of costs is a condition precedent.

4. Heard.

5. In the present case a perusal of the zimni orders reveals that on 15.05.2019 only one PW namely, Lal Chand, was present despite the fact that three witnesses i.e. PW3-Hoshiyar Singh, PW4-Nonihal Singh and PW5-Lal Chand were bound down for 11.03.2019. PW5-Lal Chand was examined and no objection which might have been raised by learned counsel on behalf of the plaintiff-petitioner has been recorded in the order dated 15.05.2019, however, it states that the costs shall be paid on the next date of hearing. On 26.07.2019 none of the PWs came present. Vide order dated 09.09.2019 it has been recorded that counsel for the plaintiff-petitioner closed his oral evidence with a request to tender documentary evidence. Yet again the issue of costs was not raised. On 25.09.2019 the documents were tendered and the matter was fixed for the evidence of the defendantrespondents at their own responsibility. It is thereafter that the application for striking-off the defence has been filed. The plaintiff-petitioner himself has been not complying with the orders of the Trial Court inasmuch as despite the fact that two witnesses who were bound down, chose not to appear before the Trial Court and thereafter after seeking adjournments the plaintiff-petitioner closed his evidence without the sa