Section 35-B of the Code of Civil Procedure, 1908, does not authorize the dismissal of a suit for non-payment of costs; instead, it mandates that non-compliance leads to the forfeiture of the defaulting party's right to further prosecute the suit or defence.

JUDGEMENT

JYOTI SINGH, J. (ORAL)

1. Present revision petition lays a challenge to an order dated 27.08.2022, whereby the Trial Court has dismissed the suit of the Petitioner herein for non-payment of cost imposed vide an earlier order dated 28.11.2018. Petitioner herein is the Plaintiff before the Trial Court and Respondents are the Defendants. Parties are hereinafter referred to by their litigating status before this Court.

2. Necessary and relevant facts are that on account of a marital discord between the Petitioner and her husband who is Respondent No. 1 herein, on 05.09.2015, Petitioner filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the concerned Metropolitan Magistrate and the same is pending consideration. On 25.07.2016, Petitioner also filed a suit being CS DJ 79089/2016 for declaration and permanent injunction with respect to the suit property being Flat No. 106, Pocket-B-6, Sector-4, Rohini, Delhi-110085. Written statement was filed by the Respondents and issues were framed on 11.10.2017 and on the same date, the matter was adjourned to 07.02.2018, directing the Petitioner to file evidence by way of affidavit. On 07.02.2018, adjournment was sought on behalf of the Petitioner on ground that the counsel was held up in another Court. At request, one more opportunity was granted for Plaintiff’s evidence listing the matter on 28.05.2018. Petitioner filed her evidence by way of affidavit on 28.05.2018 and the matter was adjourned to 08.08.2018, on which date adjournment was again sought by the Petitioner as her counsel was not available. Last and final opportunity was granted by the Trial Court for completing Petitioner’s evidence on 28.11.2018, failing which the evidence was liable to be closed. On 28.11.2018, no witness was present on behalf of the Petitioner and adjournment was sought by her father on the ground that she was unwell and medical prescription was filed. The Trial Court granted one more opportunity for evidence, subject to cost of Rs.3,000/-. Subsequently, an application was filed by the Petitioner for waiver of cost and another adjournment was sought by the Petitioner, which was granted by the Trial Court, however, subject to additional cost of Rs.10,000/-.

3. Since the counsel for the Petitioner was not appearing on the dates fixed before the Court, Petitioner changed her counsel, however, on 27.08.2022, the Trial Court dismissed the suit on the ground that the costs imposed on the earlier dates were unpaid and Petitioner had not complied even with the direction of supplying copy of the affidavit in evidence to the Respondents. The suit was dismissed by the Trial Court invoking the provisions of Section 35-B CPC.

4. Learned counsel for the Petitioner contends that Trial Court has wrongly dismissed the suit on account of non-payment of costs or non-supply of copy of the affidavit to the Respondents. The impugned order is against the provisions of Section 35-B CPC, as also the judgment of the Supreme Court in Manohar Singh v. D.S. Sharma and Another , (2010) 1 SCC 53. It is submitted that if the costs were not paid by the Petitioner, at best the Trial Court could have forfeited the right of the Petitioner to prosecute the case but could not have dismissed it. It is also the submission of the Petitioner that there is a matrimonial dispute between the parties and maintenance applications have been filed by the Petitioner, wherein execution petitions are also pending. Petitioner is unable to meet her daily needs and has no means of livelihood and was therefore, unable to pay the cost and