120

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CR-3944-2022 (O&M)

Date of decision : 16.09.2022

Sahiram

... Petitioner(s)

Versus

Yadram & Ors.

... Respondent(s)

CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

Present :

Ms. Pratibha Yadav, Advocate for the petitioner.

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.

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

YOGESH SHARMA

2022.09.19 12:35

I attest to the accuracy and integrity of this

order/judgment

Punjab and Haryana High Court,

Chandigarh

CR-3944-2022 (O&M)

-2-

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.

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.

YOGESH SHARMA

2022.09.19 12:35

I attest to the accuracy and integrity of this

order/judgment

Punjab and Haryana High Court,

Chandigarh

CR-3944-2022 (O&M)

-3-

Heard.

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 p