* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + C.R.P No.4300 of 2009 %08.11.2010 # Sri V.Veeresh and another ….Petitioners. Vs. $ Smt. Chiloth Kumari. …. Respondent. ! Counsel for the Petitioner: A.P Venugopal Counsel for Respondents: Sri Sai Baba.I <Gist : >Head Note: ? Cases referred: THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.4300 of 2009 Date: 08.11.2010 Between: Sri V.Veeresh and another. ……….. Petitioners/defendants And Smt. Chiloth Kumari. ……. Respondent/ Plaintiff THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.4300 of 2009 ORDER: 1. This civil revision petition has arisen out of the order dated 27.7.2009 passed in I.A.No.1164 of 2008 in O.S.No.339 of 2007 on the file of XI Junior Civil Judge, City Civil Court, Secunderabad. 2. The brief facts of the case are as follows: The respondent herein is the plaintiff in original suit. The petitioners 1 & 2 herein are the defendants 1 & 2 in the original suit. The respondent filed a suit for perpetual injunction against the petitioners herein contending inter alia that the suit schedule property was gifted to her by her father under a gift deed vide document No.2749/1992, dated 6.3.2009 and that since then she has been in peaceful possession and enjoyment of the suit schedule property. 3. The main case of the petitioners herein appears to be that the respondent herein executed General Power of Attorney in favour of her husband, who in turn by virtue of G.P.A executed a sale deed in favour of one Srinivias who in turn executed a sale deed in favour of 2nd petitioner herein. The specific case of the respondent is that she never executed any G.P.A in favour of her husband. It is also the case of the respondent that the petitioners herein did not file any documents before the lower Court on which they are relying. The matter was posted for trial on 24.9.2008. The specific case of the respondent is that as she was suffering with high fever, she could not attend the Court and could not pay the costs as directed by the Court. Consequently, the suit was dismissed for default on 24.9.2008 and then she filed I.A.No.1164 of 2008 under Order 9, Rule 9 CPC read with Section 151 of CPC to restore the suit. The lower Court, observing that an application was filed within the period of limitation and that an opportunity has to be given to the petitioner, allowed the application on payment of costs of Rs.500/-. 4. As seen from the grounds of appeal, the case of the petitioners herein i.e., the respondents in the lower Court is that the lower Court has no jurisdiction to allow the same in view of the language of Section 35B C.P.C and when the suit was dismissed for non-payment of costs and that it is a decree under Section 96 of C.P.C and therefore an appeal lies and no application was maintainable. It is also contended that the lower Court has no jurisdiction to pass the impugned order. 5. The only point that arises for consideration is whether the impugned order is sustainable? Section 35B of CPC is as follows: “35B.Costs for causing delay.—(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit— (a) fails to take the step which he was required by or under this Code to take on that date, or (b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of— (a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs, (b) the defence by the defendant, where the defendant was ordered to pay such costs.” 6. Explanation of Section 35-B is more important which is as follows: “Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.” 7. It has to be seen that in spite of introducing under Section 35- B, there is no amendment to Order 9, Rule 9 CPC which remains as it is. Thus, it appears that in spite of adding Section 35-B, the powers of the Court under Order 9, Rule 9 CPC are not taken away. However the lower Court did not consider the objection raised by the petitioners with regard to maintainability of the application under Section 35-B CPC. Whenever a factual or legal point is raised, the Court is bound to deal with the same. 8. Order 9, Rule 9 CPC is as follows:- “9. Decree against plaintiff by default bars fresh suit. —(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from brining a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 9. But since Order 9, Rule 9 CPC is not amended even after introducing Section 35-B CPC, it cannot be said that, the Court has lost it’s power to pass orders under said provision. Therefore, Section 35-B, its explanation and Order 9, Rule 9 CPC have to be read together. 10. The case of the petitioners appears to be that the case was adjourned from time to time but the respondent herein i.e., the plaintiff in the suit failed to adduce evidence in spite of giving many opportunities to her and that since the respondent failed to appear before the Court, the case was adjourned to 24.9.2008 on payment of costs. On that day, the respondent was absent and costs were also not paid and the suit was dismissed for default. Then the respondent herein filed the application under Order 9, Rule 9 CPC to restore the suit and to set aside the dismissal order dated 24.9.2008. The further case of the petitioners is that the order passed by the lower Court falls within the ambit of Section 35B (2) of the C.P.C and it is an executable order. Admittedly, the suit was posted to 24.9.2008 for adducing evidence on payment of costs. Thus the respondent herein failed to take steps, which she was required by the Court by or under the orders of the Code to take on that date. What is to be done in such a situation has been envisaged under Section 35B. 11. A reading of sub-section (1) (a) & (b) of Section 35B of CPC makes it clear that when a party fails to take step which he was required by or under this Code to take on that date, or obtains an adjournment for taking such step or for producing evidence or on any other ground, the course left to the Court is by recording reasons, the Court may make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit by the plaintiff or defence by the defendant as the case may be. The petitioner may be right in saying that the order passed by the lower Court falls within the ambit of Section 35-B CPC. But, however, it appears that it was not made clear that such an order was passed under Section 35B-2 CPC and costs were imposed in usual course. Whenever the Court is inclined to impose costs under Section 35-B (2) of CPC, it must be made clear that an order is passed under Section 35-B (2) of CPC, which has severe consequences. The words that “for the reasons to be recorded” in Section 35-B makes it clear that specific reasons have to be assigned for imposing costs under Section 35-B CPC. Then an order under Section 35-B could be passed only after recording reasons for such an order. Therefore, each and every order passed imposing costs can not be brought within the ambit of Section 35-B CPC. Therefore, the application filed by the respondent under Order 9, Rule 9 CPC is maintainable. It is not the case of the petitioners that an order was passed by the lower Court under Section 35B of CPC, after recording reasons as required thereunder and the case was posted for compliance of such order on 24.9.2008. The lower Court instead of dismissing the suit it appears that ought to have passed an order as required under sub-section 1 of Section 35B of CPC and had the respondent failed to comply such order on the next following the date of such order. Clause (a) of sub-section (1) of Section 35B would have been a condition precedent to the further prosecution of the suit by the respondent/plaintiff. Anyhow, the lower Court has in its discretion allowed the application under Order 9, Rule 9 CPC. It has to be seen that the application to set aside the dismissal order was filed within 30 days and the lower Court satisfied that a valid ground has been shown to set aside the dismissal order. Moreover explanation to Section 35B CPC makes it clear that, payment of such costs imposed under Section 35-B is a condition precedent for further prosecution of the case by the defendants and explanation 2 makes it further clear that the costs ordered to be paid under sub-section 1 shall if not paid be included in the costs awarded in the decree passed in the suit. Therefore, it appears as far as recovery of costs imposed under sub-section (1) Section 35B is concerned, it becomes an executable decree. Therefore, I do not see any illegality or irregularity in the order passed by the lower Court and it appears that there are no merits in the revision. 12. Accordingly, the Civil Revision Petition is dismissed. No costs. ______________________ Justice B.Chandra Kumar Date:08.11.2010 L.R. Copy to be marked. mrb