Decided on June 24,1983

Paresh Chandra Rana Appellant
Sankar Kumar Roy And Ors. Respondents


Nani Copal Chaudhuri, J. - (1.) With the consent of the learned Advocates for the parties the main rule is taken up for hearing to day. Defendant No. 1 in Title Suit No. 199 of 1980 in the 3rd Court of Munsif, Midnapore filed this revision application under section 115, Civil Procedure Code impugning order No. 45 dated 7.3.83 passed in the suit and obtained a Rule herein. The aforesaid suit was fixed for ex parte hearing on 7.3.83. After plaintiff had examined himself in full as P. W. 1 proved some documents which were marked exhibits and the Court was about to pronounce its judgment the learned Advocate for the defendant appeared and filed a petition supported by medical certificate alleging that the defendant No. 1 was suffering from Peptic Ulcer. A prayer was made for deferring the ex parte, hearing of the suit and for granting him an adjournment. The learned Munsif found and expressly recorded in the order impugned that serious illness of defendant No. 1 would justify deferring ex parte hearing of the suit but he observed that defendant should be ordered to pay exemplary costs to the tune of Rs. 500/-.Accordingly by the impugned order the learned Munsif adjourned the peremptory hearing of the suit to 12.4.83 and granted the defendant the opportunity to cross-examine the plaintiff subject to his payment of Rs. 500/- as costs to the plaintiff within the said date. The learned Advocate for the defendant-petitioner contends that while passing the aforesaid order the learned Munsif exercised a jurisdiction not vested in him by law and he has acted with material irregularity. He further submits that the order would occasion failure of justice to him as he has virtually been shut out from participating in the trial under the peril of paying excessive costs to the plaintiff under an illegal order. In order to amplify his arguments Shri Das the learned Advocate for the petitioner lays his fingers on sections. Section 35A and 35B of the Civil Procedure Code. He contends that the order for payment of costs embodied in the impugned order does not obviously come under section 35A as it has pot been passed at the conclusion of the trial on a finding that the defence filed was vexatious and cannot as such be exercised as compensatory cost. He argues that the cost awarded in the instant case was patently cost for causing delay contemplated in section 35B. The essential characteristic of such cost as laid down in the aforesaid section is that it must be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on the date. Mr. Das argues that there is no indication in the order impugned as to how much costs plaintiff had incurred in coming to the Court on the date fixed. It is again not explained how Rs. 500/- would- be necessary to reimburse the plaintiff as to the costs he had incurred in attending the Court. On the other hand there are ample indication in the order itself that costs were awarded in favour of the plaintiff by way of exemplary and penal measure. Mr. Das argues that section 35B does not authorise the learned Munsif to pass orders by way of an exemplary and penal measure and to that extent the order passed by the learned Munsif was passed in exercise of the jurisdiction not vested in him, ami as such this Court should have no hesitation to exercise its powers in 'revision under section 11-5, Civil Procedure Code.
(2.) The learned Advocate for the opposite party, plaintiff contends that by the order impugned no case has been decided by the Court Subordinate ;to the High Court and as such there is no scope for interference under Section 115 of the Code. He places his reliance on several rulings to which make no reference as the said rulings were given prior to the amendment of the Civil Procedure Code in 1976. The controversy regarding the point as to the competence of the High Court to interfere in revision in the matter of interlocutory orders has been set at rest by the explanation inserted in section 115 by the amendment Act of 1976 laying down that the expression "any case which has been decided" includes any order made in course of a suit or other proceeding. The order impugned herein is certainly an order passed in the suit deciding the right of the defendant to obtain an adjournment on a ground considered sufficient by the Court. So no question arises as to the propriety of exercising power under section 115, Civil Procedure Code in the instant case.
(3.) In the result the revision petition succeeds and the rule is made absolute on contest. No order is made as to costs. The order impugned is set aside. The learned Munsif is directed to pass such costs causing delay by the defendants in favour of the plaintiff as would be sufficient to reimburse him for the costs he had incurred in attending Court on 7.3.83. The order of ad interim stay is vacated.;

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