Section 35B CPC Mandates Dismissal for Cost Default: Delhi High Court

In a stern message to litigants employing dilatory tactics, the Delhi High Court has upheld the dismissal of an application filed by a defendant who repeatedly failed to appear or fulfill mandatory cost obligations. Presiding over the case, Justice Girish Kathpalia underscored that judicial proceedings must not be allowed to linger for decades due to frivolous delays.

The Background of the Dispute

The case, Sohn Singh vs. Dildar Singh , involved a suit for recovery of a loan amount. The defendant, seeking to recall the plaintiff’s witness (PW1) for cross-examination, moved an application under Order XVIII Rule 17 of the Civil Procedure Code ( CPC ). This application followed a series of missed appearances and a failure to pay costs previously imposed by the trial court.

The petitioner cited several reasons for his defaults, including a personal accident and ongoing lawyer strikes. However, the High Court found these explanations insufficient and inconsistent with the trial record.

Arguments and Judicial Scrutiny

Counsel for the petitioner argued that the trial court was overly rigid in denying a pass-over on the dates scheduled for evidence. Conversely, the respondent contended that the petitioner had taken 11 adjournments, characterizing them as a deliberate strategy to delay litigation and frustrate the recovery process.

Justice Kathpalia’s analysis of the trial court's order highlighted a critical issue: the sanctity of the ordersheet. The court noted that the petitioner failed to challenge the trial court's record—which stated that no counsel had appeared on his behalf—at the time the order was passed. Consequently, the petitioner could not later claim the trial court’s record was inaccurate.

Legal Analysis: The Mandate of Section 35B

The core of the High Court’s ruling rested on the non-payment of costs directed on September 13, 2024. Despite a full year passing since that order, the costs remained unpaid.

The court invoked the legal principle established by the Supreme Court in * Manohar Singh vs. D.S. Sharma (2010)*, which clarifies that under Section 35B of the CPC , the consequence of failing to pay costs is that the defaulting party must be prohibited from participating further in the proceedings. Justice Kathpalia affirmed that the trial court acted well within its legal authority when it closed the petitioner’s right to cross-examine and present evidence due to this default.

Key Observations

The judgment serves as a reminder of the court's expectation regarding procedural discipline:

• On the Sanctity of Records: "The judicial record is sacrosanct. If proceedings are not correctly recorded in the ordersheet, the party concerned must immediately move the same court for rectification, failing which the party concerned cannot be allowed later to challenge correctness of the contents of ordersheet."
• On Lawyer Strikes: "It has been repeatedly held by the Supreme Court as well as all High Courts across the country that strike by lawyers is not a justified ground for defaults. The courts are never on strike."
• On Judicial Efficiency: "It is high time that paradigm be changed by courts and an impression across the society be dispelled that civil suits can be allowed to run for decades."

Final Decision

Finding no infirmity in the trial court’s decision to dismiss the defendant's request, Justice Kathpalia upheld the order. The petition was dismissed, reinforcing the necessity for litigants to adhere Strictly to procedural timelines and cost directions to ensure the efficient administration of justice.