Civil Revision No.5151 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-30.8.2010 Amarjit alias Amarjeet Singh ...Petitioner Versus Harpreet Kaur ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Vipul Aggarwal, Advocate for the petitioner. M ehinder S ingh S ullar , J . (Oral) The conspectus of the facts, culminating in the commencement, relevant for disposal of present petition and emanating from the record, is that the respondent-wife Harpreet Kaur filed the petition against her husband-petitioner Amarjit alias Amarjeet Singh for declaring their marriage as nullity, invoking the provisions of Section 12 of the Hindu Marriage Act, 1955 (hereinafter to be referred as “the Act”), inter-alia, pleading that during the illness of her father, he came in her contact. During conversation, he pretended that he belongs to a very good family and has passed his LLB examination. He is employed as Public Prosecutor at District Courts, Amritsar. He has also appeared in PCS exams and would soon be a Judicial Magistrate. He disclosed his income as Rs.30,000/- per month, which were subsequently found to be false. 2. According to the respondent-wife that after the death of her father, her mother searched a good match/boy, namely Bharminder Singh, resident of Canada. Her engagement was performed with him on 24.9.2008 at Amaritsar and the THAKA CEREMONY was also performed on 10.1.2009. The wife claimed that when Amarjit came to know about her engagement, then he started threatening her with dire consequences to kill her as well as his parental uncle, namely Civil Revision No.5151 of 2010 2 Davinder Singh, in case she did not marry him. 3. Levelling a variety of allegations contained in the petition (Annexure P1), in all, the respondent-wife claimed that from the very inception, his intention was dishonest and he has been making false representation in every respect. She always remained under fear and constant tension and could not give free consent of her marriage. Amarjit Singh performed the marriage with her on account of mis- representation and fraud committed by him. On the basis of aforesaid allegations, the respondent-wife filed the petition against the petitioner-husband for declaring their marriage as nullity in the manner indicated here-in-above. 4. The petitioner-husband contested the petition and filed the written statement (Annexure P2), inter-alia, stoutly denying all the allegations described in the petition (Annexure P1) and prayed for its dismissal. 5. During the course of the trial, the defence of the petitioner-husband was struck off by the trial Court, vide impugned order dated 9.8.2010. He did not feel satisfied with the same and filed the present revision petition. That is how, I am seized of the matter. 6. Having heard the learned counsel for the petitioner-husband, having gone through the record with his valuable help and after considering the matter deeply, to my mind, there is no merit in the revision petition. 7. Ex facie, the argument of the learned counsel that the trial Court fell in legal error in striking off the defence of the petitioner-husband, is neither tenable nor the observations of Hon'ble Apex Court in case Manohar Singh v. D.S.Sharma and another (2010) 1 Supreme Court Cases 53 are at all applicable to the present controversy, wherein, it was held that “it is evident from Order 17 Rule 1(2) proviso (e) that 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 Civil Revision No.5151 of 2010 3 and closing the evidence of the witness.” It was also held that “as regards the meaning of the words “further prosecution of the suit” and “further prosecution of the defence” in Section 35-B if the legislature intended that the suit should be dismissed in the event of non-payment of costs by the plaintiff, or that the defence should be struck off and suit should be decreed in the event of non-payment of costs by the defendant, the legislature would have said so and if the costs imposed under Section 35-B are not paid, the consequences mentioned therein would follow. However, Section 35-B cannot come in the way of the court's general power to extend time under section 148 CPC. Such extension can be granted only in exceptional circumstances and by subjecting the defaulting party to further terms. No party can routinely be given extension of time for payment of costs, having regard to the fact that such costs under Section 35-B were itself levied for causing delay.” Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to rescue of the petitioner- husband in the instant case. 8. As is evident from the record that the respondent-wife concluded her evidence on 25.3.2010 and the case was slated for evidence of the petitioner- husband on 29.4.2010. On that day, no witness of the husband was present. An adjournment was requested, which was granted and he was directed to produce the entire evidence at his own responsibility on 7.6.2010 and to take dasti summons for service of the witnesses, as provided under Order XVI Rule 7-A CPC. Similarly, on 7.6.2010, no witness was present nor could be summoned through the agency of the Court due to non-filing of process fee, diet money and list of witnesses. Likewise, an adjournment was prayed, which was again granted and the case was adjourned to 9.8.2010 for evidence of the petitioner-husband at his own responsibility and subject to payment of Rs.100/- as costs. 9. Sequelly, on 9.8.2010, position remained the same. Neither any witness of petitioner-husband was present nor the cost of Rs.100/- was paid. Civil Revision No.5151 of 2010 4 Thus, the trial Court struck off his defence, vide impugned order dated 9.8.2010, which is as under:- “No RW present nor could be summoned through agency of the court due to non filing of PF/DM and list of witnesses. Even costs of Rs.100/- have not been paid by respondent to the petitioner and her statement in this regard has been recorded separately. Learned counsel for the respondent has not put forward any explanation regarding non payment of cost and non production of evidence. Therefore, defence of the respondent is hereby struck off. Now to come up for rebuttal evidence of petitioner, if any or for arguments on 17.8.2010.” 10. As indicated here-in-above that more than sufficient opportunities were granted to the petitioner-husband, but he failed to conclude his evidence. Not only that, neither the cost of Rs.100/- was paid by him nor any cogent explanation was put forward regarding non-payment of costs. Meaning thereby, as the petitioner-husband has failed to pay the adjournment costs of Rs.100/- despite specific demand, therefore, the trial Court did not have any option and was right in striking off his defence as contemplated under Section 35-B CPC, which postulates that “if, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit fails to take the step which he was required by or under this Code to take on that date, or obtains an adjournment for taking such steps 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 the suit by the plaintiff, where the plaintiff was ordered to pay such costs and the defence by the defendant, where the defendant was ordered to pay such costs.” 11. An identical question arose before the Full Bench of this Court in Civil Revision No.5151 of 2010 5 case Anand Parkash v. Bharat Bhushan Rai and another AIR 1981 Punjab and Haryana 269(1). Having interpreted the relevant provisions, it was ruled that “in the event of the party failing to pay the costs on the date next following the date of the order imposing costs, it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be, and that no other extraneous consideration would weigh with the Court in exercising its jurisdiction against the delinquent party.” It was reiterated that a bare scrutiny of the provisions of Section 35-B would show that the Legislature had made its intention absolutely clear and beyond the pale of any doubt, that the provisions are mandatory in nature and any non-compliance with the same would result in penal consequences as envisaged therein. If the Legislature had not intended to make the provisions of the Section mandatory, then it was not at all necessity for the Legislature to have qualified the words 'shall' by using words 'condition precedent.' The costs are ordered to be paid to compensate the other party who for no fault of his has to undergo inconvenience and incur expenses. If an adjournment is sought and the same is granted on payment of costs, then on the next date of hearing the party who sought adjournment is bound to pay the costs. The Court is only required to see whether the costs have been paid or not and if a party does not pay the costs, then the only course open to the Court is to disallow the prosecution of the suit or the defence any further. The Court would not go into the question whether the party who sought adjournment has or has not been guilty of delaying the suit or that it was not useful for the party to lead evidence or that the adjournment sought was unnecessary. 12. Therefore, these observations “mutatis mutandis” are applicable to the facts of the present case and are the complete answer to the problem in hand. Thus, I am of the view that since the petitioner-husband did not pay the adjournment costs despite specific demand and no exceptional circumstances for extension of time were made out, so, the trial Court has rightly struck off his Civil Revision No.5151 of 2010 6 defence and recorded the valid reasons in the impugned order. Such order cannot legally be set aside by this Court while exercising the limited revisional jurisdiction as contemplated under Article 227 of the Constitution of India, unless and until, the same is perverse and illegal. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-husband in the impugned order. 13. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner-husband. 14. In the light of the aforementioned reasons, as there is no merit, therefore, the present revision petition is hereby dismissed, in the obtaining circumstances of the case. (Mehinder Singh Sullar) 30.8.2010 Judge AS Whether to be referred to reporter?Yes/No