- (1.) The only question that requires to be answered in this case, is as to whether the learned trial court could close the evidence of the defendants-appellants under Section 35-B of the Code of Civil Procedure ('the Code'), for the non-payment of the costs, imposed upon them, during the pendency of the proceedings on the earlier dates, on a date, which was not fixed for that purpose.
(2.) The facts giving rise-to the dispute in this second appeal, are as under :- The plaintiffs-respondents had filed a suit against the defendants-appellants, stating that the shops in dispute were their property, and that the appellants-defendants had no right to use the roofs thereon, and praying for a decree of injunction, restraining them from using the said roofs. The suit was contested by the defendants- appellants. After framing the necessary issues, the learned trial court recorded the evidence of the plaintiffs-respondents, and after they closed their evidence. The case was fixed for the evidence of the appellants-defendants. On 30th August, 1979, at the request of the learned counsel for the appellants- defendants, the case was adjourned to 21st September, 1979, on payment of Rs. 10/- as costs. On 21st September, 1979, part statement of Abdul Rehman was recorded, without the appellants paying the costs or the plaintiffs asking for it, or the learned court directing that they should be paid to the plaintiffs, and it appears that without noticing the earlier order. After part statement of Abdul Rehman was recorded, the case was adjourned at the request of the learned counsel for the appellants-plaintiffs, subject to payment of Rs. 10/- as costs. On 4th January, 1980, the defendants filed an application under Order 13, Rule 2 of the Code, enclosing therewith, certain documents, and praying that those documents be taken on record. The said application was allowed, subject to payment of Rs. 25/- as costs. Thereafter, the learned Presiding Officer remained on leave, and on the next date, he was transferred, and his successor had not been appointed. The matter came up before the learned court on 27th January, 1981, when no witness of the defendants- appellants, was present and the court directed to the defendants to file PF, for summoning the witnesses. It appears that when no evidence was recorded in the case on 16th October, 1981 but the respondents-plaintiffs moved an application, stating that the appellants-defendants had not paid the costs, imposed on them on 30th August, 1979, 21st September, 1979 and on 4th January, 1980, and praying that their evidence be closed under Section 35-B of the Code. The learned trial court, after hearing the learned counsel for the parties, vide the order dated 19th December, 1981, allowed the said application and closed the evidence of the defendants-appellants, without giving them an opportunity to pay the costs, and thereafter, decreed the suit of the plaintiffs-appellants, vide the judgment dated 21st May, 1982. The appeal against the said decree and judgment, was heard by the learned District Judge, Kota, who dismissed it vide the impugned judgment dated 6th February, 1984, and hence, this second appeal in this Court.
(3.) It is not in dispute that the plaintiffs never asked the court to direct the defendants-appellants, to pay the costs on the date, when they appeared after the date, on which, the costs were imposed on them, and even the court did not notice that the costs were to be paid by the defendants-appellants, and had been imposed on them on three occasions. It appears that neither the defendants, nor the plaintiffs, nor even the court was conscious of the fact that the costs were to be paid by the appellants-defendants, and the proceedings in the case went on, without this fact being consciously noted by either of the parties, and thereafter, suddenly, the application under Section 35-B of the Code, was moved by the plaintiffs. There is no dispute that the court has power to grant adjournments on such conditions as may be deemed just and proper in the circumstances of the case, but unless, the court comes to the conclusion that the condition imposed by it, it has not been wilfully observed by a party, no penal action can be taken against any such party. In the present case, as noted above, non-payment of the costs, was not because of any wilful act of the appellants-defendants, but, because of the fact that neither of the parties was conscious about their payment, and even the court had not noticed that the costs had to be paid on certain dates, by the appellants-defendants, to the respondents-plaintiffs. No good reason is coming forward as to why the court did not direct the appellants, to pay the costs, already imposed on them,and straightway closed their evidence. In my view, this order was outside the jurisdiction of the court, who could close the evidence of the appellants- defendants, in the circumstances, mentioned in the earlier part of this judgment. The decree having been passed by the learned trial court, without giving an opportunity to the defendants, by wrongfully closing their evidence, cannot be said to be legal, and in my view, the learned first appellate court also did not take into consideration this fact, and has disposed of the appeal, on the ground that because of various adjournments taken and no witness having been produced, there was sufficient ground for closing the evidence of the appellants-defendants. As observed above, the evidence was not closed because of non-production of witnesses, but, because of non-payment of costs. In this view of the mater, the impugned judgment and decree also cannot be said to be legal.;