casts - non payment - does not entitle dismissal of suit - words "further prosecution of suit" - means further participation in suit - not dismissal - court can extend time.

Citation

CDJ 2009 SC 1978

Manohar Singh Versus D.S. Sharma & Another

Head Note

Civil Procedure Code – Section 35B, 148, Order 17 Rule 1 – Costs for causing delay –Extension of time - Grant of time and adjournments - High court held that the provisions of section 35B were mandatory and if the costs levied were not paid "the only course open to the court is to disallow the prosecution of the suit" and, that meant the dismissal of the suit – Appeal - A suit cannot be dismissed for non-payment of costs - Under the scheme of CPC, a suit cannot be dismissed for non-payment of costs. Non-payment of costs results in forfeiture of the right to further prosecute the suit or defence as the case may be. Award of costs, is an alternative available to the court, instead of dispensing with the cross-examination and closing the evidence of the witness. If the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party - The plaintiff has harassed the defendants and its witness by seeking repeated adjournments. In view of it, plaintiff's right to cross-examine DW2 stands forfeited. However, as costs were levied, but were not paid, the court should have closed the evidence of DW2, permitted the defendants to produce any further evidence (without any right to plaintiff to cross-examine such witnesses) and then ought to have proceeded to dispose of the suit on merits by considering the material available and hearing the arguments of defendant. The court could not have dismissed the suit - Allow these appeals, set aside the judgments of the High Court and the trial court, restore the suit to its file, subject to the following: (i) The right of the plaintiff to cross-examine DW2 stands forfeited and he is barred from prosecuting the suit further. (ii) The trial court shall however permit the defendants to let in any further evidence, hear arguments and then dispose of the suit. (iii) However, if plaintiff-appellant tenders the costs with an appropriate application under section 148 CPC, the trial court may consider his request in accordance with law. Even if the court extends the time for deposit, permits the plaintiff to pay the costs and prosecute the suit further, that will not entitle the plaintiff to cross-examine DW2.

Para 8 to 10

Case Referred:
2010 (I) OLR (SC) 31

Comparative Citations:
2009 (5) CTC 569, 2009 (4) KLT 686, 2009 (8) MLJ 1550, 2010 (1) SCC 53, 2010 (2) SCJ 621, 2010 (3) LW 22, 2010 AIR(SC) 508, 2009 (7) Supreme 357, 2009 (13) Scale 676, 2009 (14) JT 191, 2010 (2) SLT 340, 2010 CutLT(Suppl) 1009