Civil Revision No. 2609 of 2009 (1) In the High Court of Punjab & Haryana at Chandigarh Civil Revision No. 2609 of 2009 (O&M) Date of decision : 7.5.2009 S. K. Kaushal ..... Petitioner vs Smt. Sudesh Kalra and others ..... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Petitioner in person. Rajesh Bindal J. Challenge in the present petition is to the order dated 18.10.2008 passed by the learned court below whereby the application filed by the petitioner for waiver of costs was dismissed. Further challenge was made to the order passed by the learned Additional District Judge (Adhoc) Fast Track Court, Ambala, dated 17.4.2007, whereby while dismissing the appeal filed by the petitioner against the order of the trial court passed in an application under Order XXXIX Rules 1 and 2 CPC, the costs of Rs. 10,000/- was imposed, 50% of which was to be deposited with Free Legal Aid Cell and remaining 50% was to be paid to defendant no.1. Briefly, the facts are that the petitioner filed a suit for permanent injunction restraining defendant no.1 from interfering with his peaceful possession and enjoyment of the property and restraining him from raising construction on the encroached/grabbed government land. The application for interim injunction filed along with the suit was dismissed vide order dated 26.3.2002. Against the said order, the petitioner filed appeal before the learned Additional District Judge which was dismissed vide order dated 17.4.2007 with costs and the parties were directed to appear before the trial court on 18.5.2007. Thereafter, the proceedings started before the trial court and in that the petitioner moved an application for waiver of costs taking the plea that respondent no. 1 having not raised the issue at the very first date of hearing, the same should be waived of. The application was rejected by the trial court vide order dated 18.10.2008. The petitioner is now before this court challenging the both aforesaid orders. Civil Revision No. 2609 of 2009 (2) At the time of arguments in response to the query of the court regarding the fact that the challenge to the impugned orders was highly belated, the petitioner submitted that he is a senior citizen, who retired as Lt. Colonel. He was not keeping good health. In fact, he was diagnosed Menieas disease which is quite serious and he is under treatment therefor. He recently suffered heart attack also for which he remained under medical treatment. Accordingly, after passing of the order on 17.4.2007, he could not approach this court within time. Medical record has been placed on record showing his treatment from various doctors/hospitals. On merits, it was submitted that the petitioner, in fact, had approached the learned court below for protection of his rights and also bringing to the notice of the authorities, the misdeeds of defendant no. 1 who had encroached the government property and also raised illegal and unlawful construction. He was practically condemned unheard by the trial court at the time of hearing of application for interim stay. Even before the learned Appellate Court his contentions were not appreciated. The material placed on record was not perused. The petitioner was not granted opportunity to even file replication to the written statement filed by the respondents/defendants before decision of the application for stay. The learned lower Appellate Court imposed the costs on the petitioner considering the fact that he was delaying the matter and also for concealment of material facts, for which the petitioner was not guilty at all. He further submitted that in terms of Full Bench judgment of this Court in Prem Sagar and others vs Phul Chand and others AIR 1983 Punjab & Haryana 385, if the costs as is imposed by the court is not demanded on the very next date of hearing, the right to claim the same is waived off. He further referred to provisions of Section 35-A CPC to submit that the maximum costs which could be imposed for any default is Rs. 3,000/-. A perusal of the order passed by the learned trial court after the matter was taken up after decision of appeal by the Additional District Judge shows that no objection regarding payment of costs was taken. Once that was not there, the right to claim the same later on stood waived off. Heard the petitioner who appeared in person and perused the paper-book. Civil Revision No. 2609 of 2009 (3) It is a fact that the petitioner is a senior citizen and in support of plea of delay, a lot of medical record has been produced on record. Out of Rs. 10,000/- imposed as costs, 50% had been directed to be deposited with Free Legal Aid Cell, whereas the other 50% is payable to the opposite party. There is a limit of Rs. 3,000/- for imposition of cost under Section 35A CPC. Considering the aforesaid facts at this stage, in my opinion, in the interest of justice, the petitioner can be granted relief only to the extent of deposit costs of Rs. 5,000/- with the Free Legal Aid Cell. Accordingly, the impugned order is modified to the extent that the petitioner will pay Rs. 5,000/- as costs to the opposite party, whereas the cost which was directed to be deposited with the Free Legal Aid Cell is waived off. The petition is disposed of accordingly. 7.5.2009 ( Rajesh Bindal) vs. Judge