Notarisation - Documents - Procedures

Under Rule 11(2), the notary is required to maintain a notarial register in prescribed form No. XV. The form shows 11 columns, including the column of the Serial number, Date, Name of the Notarial act, Name of the executant, Contents of documents, Notarial fee, Signatures of the executant and the Notary.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. of 2008 in Suit No. 1094 of 2007

Decided On: 17.12.2008

H.K. Taneja and Ors. and Keshavrao J. Bhosle

Vs.

Bipin Ganatra

Hon'ble Judges/Coram:

R.S. Dalvi, J.

1. Not on board. By consent, taken on board and argued by all the Advocates.

2. The applicant has applied under Order 40, Rule 1(2) of the Code of Civil Procedure. The applicant must show that he was in possession of the property such that the plaintiffs or the defendant had no present right to remove him.

3. The applicant has relied upon an Agreement dated 22.2.2001 to show his initial entry into the suit premises. This is a Leave and Licence Agreement executed by one Urmila Shah, who was the widow of one L.D. Shah, who owned the suit flat and who settled it upon a trust in favour of the plaintiffs with a provision that his widow would live in the suit flat for her life-time. The settlor as well his widow have since expired. This Agreement is not in favour of the applicant but his daughter one Mitali Sawant. It is a licence for 11 months which has expired by efflux of time. It is in respect of the permission to occupy one room in the suit flat with the common use of the bathroom, toilet and kitchen by the licensee. The licensee is to hand over possession of the premises on the expiration of licence. Though it goes without saying, it states that after the termination of the licence the occupation of the licensee would be deemed to be that of a trespasser.

4. The Agreement of licence is not registered as required. It cannot be looked into. Mr. Madon argued that it is notarized. It may be mentioned that notarization is not an additional qualification to give the unregistered document any extra worth. Be that as it may, even the notarization is not done as required. It does not show the number of notarial register of the notary as per the required rules. Its execution cannot even be verified and the applicant has taken no pains to get it verified.

5. The procedure relating to notarization under the Notaries Rules, 1956 framed under the Notaries Act, 1952 has not been followed. Under Rule 11(2), the notary is required to maintain a notarial register in prescribed form No. XV. The form shows 11 columns, including the column of the Serial number, Date, Name of the Notarial act, Name of the executant, Contents of documents, Notarial fee, Signatures of the executant and the Notary. The purpose of this rule is to relate each notarized document to the serial number in the notarial register required to be maintained by each notary in the prescribed form. Hence the serial number of the entry must be put on the document to collate the entry with the document. In case of dispute the factum of notarization would have to be separately proved by the applicant since, unlike registration, there is no presumption of execution of a notarized document. It is seen that in this case the notary has not shown the serial number and the register number in which the entry is made. It would be for the applicant to prove the notarization in view of the dispute. The applicant has not got produced the relevant notarial register of the notary, kept in the normal course of his conduct as such notary, to prove the execution of the document before him. The document being otherwise unregistered and inadmissible in evidence is, therefore, not even prima facie shown to be notarized.

6. In the case of Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah and Anr. MANU/MH/0030/1992 : AIR1992Bom149 , this Court considered, inter alia, the essence of notarization of documents by persons identified before notary and the prescribed rules, more specially Rule 11 required to be followed for every notarial act. That was a case of reliance upon a copy of a document certified as true copy by the notary. That notarial act remained unregistered. The mere fact that the document was notarized was held not to lend any authenticity to the document in the absence of seeing the notarial register kept by the notary in the course of his conduct as a notary as per Rule 11 of the Notaries Rules. Evidence was led in that case. The notary was summoned. The relevant notarial register was produced. No entry was found in the notarial register relating to the transaction claimed to have taken place under the copy document notarized as true copy. The notary deposed that the executant was not before him. He had not made any entry in the notarial register as, according to him, that was not required. He was only required to verify the document, compare the document and endorse it as true copy if it was the identical copy of the original. It was observed thus:

Law takes judicial notice of seal of a notary. In ordinary course, an initial presumption may be made about genuineness of the notarised copy of the document. The underlying idea behind such presumption is that the notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him. If the party appearing before the notary is not known to the notary, the notary must get the party identified by an Advocate known to him and take signature of both of them in token thereof.

The contents of Rule 11, its purpose and object as well as the consequences of non-compliance of the rules have also been considered in Para-11 of that judgment. Reference has been made specially to Rule 11(2) of the rules which provides that every notary shall maintain notarial register in prescribed form No. XV and the register requires entry of every notarial act in the notarial register and taking of signature of the person concerned in the register. It is observed that negligence of the notary in the discharge of his notarial functions may jeopardise the interest of third parties and public interest itself. Upon seeing that the notarial register did not disclose the notarial entry relating to the notarized document produced before the Court, it was held that no evidentiary value whatsoever could be attached to such a document.

7. It may be mentioned that that was a case of only a certification of copy of a document as a true copy. Our case goes much further. It is the case of the execution of the original document itself. The executant is required to be present before the notary. He is required to be identified before the notary. He is required to sign before the notary. The notary is required to witness such an act and register the transaction. Keeping in mind that the document relied upon by the applicant herein is not registered and hence is inadmissible in evidence, even the factum of the execution of the document is not even prima facie shown by the applicant upon proving the notarial act. It is for the applicant to make out his case. The prima facie case of proof of the execution of the document on a given date by the executant before the notary can be evidenced by the production of the true or certified copy of the relevant portion of the notarial register showing that the entry was made on the relevant date in the normal course of the conduct of the notary. The applicant has undertaken no exercise to substantiate his case of the execution of the document otherwise completely inadmissible in evidence. Since even the notarial act is not shown even a prima facie case cannot be made out.

8. In the case of J.G. Hegde v. R.D. Shukla MANU/MH/0786/2003 : AIR2004Bom55 , this Court once again considered the notarized writing which was styled as "Affidavit-cum-Indemnity Bond". The relevant notarial register got produced by the Court did not reveal the required entry. The purpose of Rule 11(2) of the Notaries Rules requiring every notarial act to be serially numbered in the register to be maintained by the notary was considered. The dual purpose served by such a practice was set out. It was observed that one was to identify every document with reference to the serial number and the other was to prevent execution of anti-dated documents by inserting an entry in between two successive entries which are serially numbered.

The documents which are notarized do not even show the serial number or the register number under which they are registered and entered. Nevertheless, the notary, if called upon by the executant to prove the notarization, would be bound to produce the relevant register of the relevant date. Only the production of such a register would show whether or not the document was indeed notarized on the date it is stated to be executed.

9. There have been numerous cases of anti-dated documents shown to be notarized other than the one that came up before the Court in the aforesaid two cases. Hence it cannot be put past any executant to produce the document shown to be notarized on a given date without substantiating that fact through the mandatorily required statutory procedure. No document thrown in the face of the Court as notarized document can, therefore, prevail without the accompanying notarial registration of entry. Of course, even if that is shown, the fact that the document has remained unregistered when it creates an interest in an immovable property would remain to be admissible in evidence. But at-least the Court could be satisfied prima facie about its execution. The document produced by the applicant without showing compliance of the Notaries Act and Rules bears no worth and deserves to be fully rejected.

10. It may be mentioned straightway that the absence of registration as well as the required procedure for notarization would make the document so inadmissible in evidence as to not allow the applicant to base his case upon such a document. The object of registration as well as notarization is lost if a document of the kind can be looked into or considered by the Court, even prima facie, to take the contents as correct.

11. The applicant has also relied upon a declaration of the deceased Urmila Shah, dated 17.5.2006 (who was stated to be 92 years old then), who declared about the relationship with the defendant in this Suit who came to be inducted by her in the suit premises to take care of her during her lifetime and who has resided therein since. Just as the defendant, who was her nephew, was "helping her", the applicant is stated to have been helping her and her nephew. Though the declaration does not make fine reading and its precise purport is undecipherable, the applicant seeks to rely upon the reference to his name in paragraph 3 at page 2 of the document. The applicant also relies upon the last paragraph in the document stating that the deponent had executed the declaration without pressure, fraud or coercion on the date of its execution and that it was binding upon herself, her family members and the defendant also. She admittedly expired 4 months thereafter, on 22.9.2006.

12. The declaration does not confer any right or title upon any one. It merely states the course of events that have transpired and about how some parties litigate. Aside from the name of the applicant in the document, it shows little else. Though the declaration sets out the acts of some parties who litigate and shows apprehension of future litigation and gives notice that it was declared by her free consent and would be binding on several persons, including herself, it does not mention about the Leave and Licence Agreement executed by the deponent herself in favour of the daughter of the applicant 5 years prior thereto under the aforesaid Agreement dated 22.2.2001.

13. Mr. Madon argued that this declaration has been notarized which carries some weight. The declaration suffers from the same ill of absence of the prescribed procedure of notarization.

14. The applicant has further relied upon another Agreement dated 14.10.2005 between the defendant and the applicant. This Agreement is executed on 2 stamp papers of Rs. 50/- each issued on 13.10.2005. They are issued not in the name of the defendant or the applicant as mandatorily required, but in the name of the Advocate J.K. Nathani (who has shown his address at Borivli in the rubber-stamp on the earlier document of 22.2.2001) and one P.V. Dalvi, M.S.S.I.D.C. Ltd. That is a Licence Agreement granting licence of the entire flat in favour of the applicant for 11 months. The period of the licence has been left blank. Deposit of a large amount of Rs. 2,52,5000/- is purportedly taken as security deposit. Aside from a receipt executed by the defendant, there is nothing else to substantiate the payment made. The entire amount is presumably paid in cash. Though the applicant has relied upon his bank passbook to show various other entries, this entry admittedly does not find place in the passbook and no other material is produced to show the payment made under any cheque. This Licence Agreement executed as late as in October 2005 has also remained unregistered. It is also similarly incorrectly notarized. Rule 11 of the Notaries Rules are not followed. Even the revenue stamps showing the notarial fees/charges are not affixed. The notarization is rather meaningless. Aside from the stamp of the notary, the Agreement shows nothing to evince its execution. Even the presence of the Advocate to interpret and explain the Agreement or to introduce the party to the notary is absent. It suffers from the same malaise which led the Court to reject the notarial document in the case of Prataprai (supra).

15. It may be mentioned that each of the notarial stamps on each of the aforesaid 3 documents is illegible. Why the parties went to those notaries, who appear to be at different places, cannot be understood. The Advocates who identified the parties before the notary in 2 of the 3 Agreements are in Borivali (East) and at the Esplanade Court, Mumbai. The declaration of the deceased Urmila Shah, who lived at Peddar Road, is surprisingly identified by Advocate in the Esplanade Court before a notary whose address is not shown. In the Leave and Licence Agreement dated 22.2.2001, she has been identified by another Advocate from Borivali, Mumbai.

16. Mr. Madon argued that though the documents are not registered, they are notarized and if the notarization is not accepted, the Court will be rejecting the identification and the explanation of the Advocates who have stamped those documents. The Leave and Licence Agreement in favour of the applicant is not identified by any Advocate. A mere notarial stamp thereon without reference to the serial number on the notarial register, therefore, requires the Court to reject the notarization. The other 2 documents are not documents of title of the applicant. The Agreement dated 22.2.2001 is in favour of his daughter who is not the applicant before the Court. The identification of the deceased in that document is by an Advocate from Borivali. It is wondrous how he identified an old lady then of about 87 years, living in Peddar Road. The identification of the deceased in the document dated 17.5.2006 is by yet another Advocate. The identification creates no confidence. It is not in terms of the requirement of law and legal procedure. None of these documents, therefore, shows the possession of the applicant in the suit premises as claimed by him arising from under these documents and cannot even be looked into.

17. It is contended on behalf of the plaintiffs that this case is not of total lack of possession simplicitor. It is a case of mala fides, mischief and fraud played upon the Court by the defendant and the applicant in concert and collusion. The plaintiffs' Advocates have painstakingly undertaken the effort of obtaining inspection and copies of certain litigations between the applicant and the defendant in the Small Causes Court. The plaintiffs have given notice to the applicant's Advocate as well as the defendant's Advocate to produce the papers and proceedings in certain 3 Suits filed in the Small Causes Court. None is produced by either of them. The plaintiffs have applied for and produced certified copies thereof.

18. Mr. Bookwala took me through the result of that research. In certain correspondence that took place between the parties prior to the filing of this Suit, the defendant had promised to vacate the suit flat by his letter dated 1.11.2006 written to the plaintiffs, Exhibit-X to the plaint. To scuttle giving up the said vacant possession as agreed by him, a Suit has been filed by Mitali, the daughter of the applicant against the defendant on 23.1.2007 being L.C. Suit No. 46 of 2007 claiming sole and exclusive possession of the suit flat. The Constituted Attorney of the defendant is her own father, the applicant herein. On 25.4.2007, the Suit came to be settled by the applicant's daughter and the defendant filing Consent Terms under which the defendant agreed not to dispossess her without following due legal process.

19. Another Suit came to be filed by the defendant against the daughter of the applicant on 13.2.2008 in which Consent Terms came to be filed by the parties on 8.8.2008 under which the applicant's daughter claimed no interest in the suit premises. Mr. Bookwala pointed out that the Advocate for the defendant in this Suit has been shown as the Advocate for the daughter of the applicant in the Suit in the Small Causes Court, Bombay. The Constituted Attorney, who verified that Plaint, is the Constituted Attorney of another occupant of the flat, one Farida Galabai, who has similarly claimed to be in juridical possession in another Notice of Motion taken out in this Suit being Notice of Motion No. 3965 of 2008. The Advocate for the daughter of the applicant in that case is the Advocate of that party in yet another Suit filed in the Small Causes Court filed by that other occupant being R.A.D. Suit No. 1739 of 2007 against the defendant. On 27.11.2007, Consent Terms were filed in that Suit between that occupant and the defendant, under which tenancy in favour of that occupant was confirmed by the defendant!! She claims, inter alia, the part of the suit premises claimed by the applicant herein.

20. The 2 Cross Suits between the defendant on one hand and the applicant and/or his daughter on the other show the transparent collusion between the parties and the desire to outreach the Court based upon the position that then suited the parties.

21. Aside from these litigations with regard to the suit flat itself, the plaintiffs have relied upon other proceedings to show the actual address of the applicant in Court records. In a Suit being Summary Suit No. 3501 of 2007 filed by the applicant against the defendant for recovery of Rs. 5 Lakhs with interest on a Promissory Note filed as late as on 3.11.2007, his address is shown to be at Banganga, Walkeshwar and not at the suit premises. The above Suit is filed on 25.3.2007. It can be seen from the Plaint and proceedings in the above Summary Suit that even in November 2007, 8 months after the filing of this Suit, the applicant was not in the suit premises.

22. Upon the filing of the Suit, an ad interim application came to be made by the plaintiffs on 4.4.2007 in Notice of Motion No. 1370 of 2007 taken out by the plaintiffs. An ad interim injunction came to be granted against the defendant, who was present, in terms of the statement made by him that he shall not create any third party rights in the suit premises. It is precisely after that order of injunction that the defendant has inducted the applicant in the suit premises. In his Affidavit-in-reply to Notice of Motion No. 1370 of 2007 filed in June 2007, the defendant stated about the presence of the applicant in the suit premises. Thereafter on 29th August, 2008 when the plaintiffs' initial Notice of Motion No. 1370 of 2007 was heard, the defendant's Counsel stated to Court that no person was residing in the suit flat. The Court Receiver was directed to take symbolic possession of the suit flat. Thereafter that order came to be modified upon an application made by the defendant's Advocate that the statement of his Counsel that no person was residing in the suit flat was incorrectly recorded and that the applicant and his wife are the family friends staying in the suit flat which came to be recorded by the Court on 4.9.2008.

23. In January 2008, a criminal complaint came to be filed by the applicant against the defendant in the Metropolitan Magistrate's Court at Girgaum, Mumbai under sections 156(111) and 420 of the Indian Penal Code (I.P.C.) alleging that the defendant was trying to oust the applicant though the applicant paid the defendant Rs. 1,75,86,000/-out of total consideration of Rs. 6.5 Crores for the sale of the suit flat.

24. In March 2008, a complaint came to be filed by the defendant against the applicant shown to be residing at Banganga, Walkeshwar, in the Court of the Chief Additional Metropolitan Magistrate at Girgaum, Mumbai, inter alia, under Section 420 of the I.P.C. and alleging, inter alia, that the suit flat belonged to the trustees and that there was no question of selling the suit flat to the applicant on receiving consideration of Rs. 1,75,86,000/- alleged to have been paid entirely in cash. It is seen from the aforesaid dates that though the applicant was never in possession of the suit flat in any capacity prior to the filing of the Suit, the defendant in order to scuttle his own admission of handing over vacant possession of the suit flat to the plaintiffs as the trustees as per his letter dated 1.11.2006 sought to file collusive Suits and sought to put up the applicant in the suit premises after the filing of the Suit.

25. It appears that the parties fell out upon whatever understandings that they may have had. Hence both the parties filed criminal complaints also after filing of the Suits. In view of the defendant having inducted the applicant in the suit premises after the filing of the Suit and after the ad interim order of injunction obtained by the plaintiffs against the defendant on 4.4.2007, the plaintiffs sought the appointment of the Receiver and of being put in possession as the Receiver's agent when Notice of Motion No. 1370 of 2007 reached hearing. It appears that by that time the relationship between the defendant and the applicant had come to pass. The defendant, who had colluded with the applicant pending the Suit, no longer desired to have the applicant in the suit premises. The defendant , who was personally present in Court when the Notice of Motion reached hearing on 8.10.2008, made a statement to Court that he shall have the persons who are his relatives and friends removed from the suit premises. He also stated to Court that if they did not vacate the suit premises, the Court Receiver may forcibly obtain possession from them. The Court observed that the defendant abided by his statement made on 4.4.2007 in the Notice of Motion when the initial ad interim order had come to be passed. The defendant clarified that none other than he was entitled to reside in the suit premises. Hence the Court Receiver was directed to allow the defendant to remain in possession of the suit premises and obtain possession from any other person who may be found in the suit premises, with Police assistance, if required.

26. The Court Receiver having proceeded to execute that order, the applicant filed this application claiming to be in possession since prior to the Suit. The two Suits in the Small Causes Court show what transpired from 23.1.2007 when the applicant's daughter (not the applicant) claimed to be in possession, to 8.8.2008 when the Consent Terms were filed in the second Suit in which she claimed no interest in the suit flat. The applicant has changed his mind. He seeks to rely upon the same document on which his daughter sued and settled.

27. The applicant must show juridical possession in the suit premises. No party can be allowed to remain in possession of the suit premises upon obtaining unlawful possession thereof. The applicant has sought to show his juridical possession by virtue of the aforesaid documents being 2 Licence Agreements executed by the widow of the settlor Urmila Shah and by the defendant and the declaration executed by the said widow. None of these documents can be relied upon, produced in Court or considered by the Court to allow the applicant to be in possession as none is admissible in evidence. The very purpose and object of the Registration Act would be frustrated and the very object of having such documents registered would be frustrated if documents such as these are allowed to be relied upon by the parties to show that the parties to the Suit have no present right to remove those parties claiming to be in "possession". Indeed there may be no case in which Court Receiver could successfully obtain possession from total and rank strangers and parties inducted after the filing of the Suit to set at naught the order of appointment of Court Receiver for protection of the plaintiffs' property, if a party upon such documents would be entitled to show the Court his "possession".

28. Whatever be the collusive Suits filed between the parties whilst they were thick friends and whatever be the frivolous complaints made against one another once their relationship soured, the independent legal proceeding by the applicant himself in this Court being Summary Suit No. 3501 of 2007 would clinchingly show the claim of possession of the applicant herein. In that independent proceeding filed 8 months after the filing of this Suit, the applicant himself has shown his address to be at Banganga, Walkeshwar. That seals his fate. The possession claimed by the applicant is neither lawful, nor juridical. The applicant was also not in any actual possession as on the date of the Suit. The applicant has been inducted in the suit premises after the filing of the Suit and after the initial ad interim order came to be passed on 4.4.2007 and in fact later than November 2007 by executing anti documents. Though the infamous idea of defrauding the plaintiffs may have occurred to the defendant prior to the filing of the Suit and after he himself agreed to vacate the suit premises to have caused the applicant's daughter to file the collusive Suit against him on 23.1.2007 being L.C. Suit No. 47 of 2007, which he settled with her a mere 3 months thereafter, there have been no proceedings between the defendant and the applicant himself and no documents produced by the applicant himself to satisfy the Court about his lawful possession in the suit premises. Even the very first document, anti-dated and fabricated as it is, relied upon by the applicant is not in his favour but in favour of his daughter.

29. It is of some importance to note that though the applicant claims to have been in possession of the suit premises since as early as in February 2001 during the lifetime of the deceased Urmila Shah herself, the applicant has not produced absolutely any documentary evidence by way of public documents to evidence his possession in the suit premises for as long as 6 years prior to the filing of the Suit.

30. The application is dishonest and mischievous.

The Notice of Motion is dismissed with costs, fixed at Rs. 5,000/-.

What defendants can do when an exparte decree is passed.

The proviso appended to Order IX Rule 13 of the Code of Civil Procedure postulates that when an ex parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, the Court is not powerless to do so. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7316 of 2008

                                        Decided On: 16.12.2008

Mahesh Yadav and Ors.Vs.Rajeshwar Singh and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and Cyriac Joseph, JJ.

Author: S.B. Sinha, J.

Citation: MANU/SC/8463/2008,AIR 2009 SC 1064

1. Leave granted.

2. Plaintiff in a suit for declaration of title and possession is before us aggrieved by and dissatisfied with the judgment and order dated 4.3.2004 passed the High Court of Judicature at Patna in Civil Revision No. 497 of 2003 whereby and whereunder an order dated 20.2.2003 passed by Munsif Biharshrif, Nalanda in Miscellaneous Case No. 19 of 1998 setting aside an ex parte decree, was reversed.

3. Plaintiff filed the aforementioned suit as Secretary of Magadh Raj Jarsandh Akhara, Rajgir. In the said suit six defendants were impleaded as parties. It was, inter alia, contended that although the plaintiff had been in uninterrupted possession of Plot No. 5180, the defendants attempted to take forcible possession of land measuring 9 decimals.

In the said suit, the defendants filed a joint written statement. During the pendency of the said suit, however, the defendants No. 2 and 5 entered into compromise with the plaintiff. A compromise petition filed by the parties thereto was accepted. Indisputably, talks for compromise were going on by and between the plaintiff and defendant Nos. 1 and 6; however, no compromise petition was filed in that behalf. Although witnesses examined on behalf of the plaintiff were cross-examined on behalf of defendant Nos. 1 and 6, they did not adduce any evidence.

The learned Munsif, Biharsharif decreed the suit, stating:

After contest this suit is decreed in favour of the plaintiff partly on the basis of the compromise petition and partly after contest. If the defendants have effected any possession over the disputed land during pendency of the present suit, the plaintiff will have full right to effect eviction of the defendants with the assistance of the court on payment of proper cost. No order regarding any cost is being given in the suit.

 

4. Appellants herein, having come to know of the said ex parte decree passed against them, filed an application in terms of Order IX Rule 13 of the Code of Civil Procedure. They examined a large number of witnesses in support of their case.

5. We may notice that plaintiff s evidence was closed on 18.5.1995. The learned Judge thereafter was transferred. The learned District Judge transferred the said case by an administrative order dated 20.2.1997. There is nothing on record to show that the counsel appearing on behalf of the other defendants were the advocate of the appellants herein also. By reason of an order dated 20.2.2003, the learned Judge while considering the case of the appellants that they were kept in dark about the development of the case due to connivance of the respondents herein as they had been informed that the compromise had been entered into by some of the parties and the Presiding Officer has been transferred, noticed:

Four witnesses have been examined on behalf of the applicant and all of them supported the facts mentioned in the miscellaneous application. Witness No. 2 Chinta Devi is herself opposite party No. 2 and has clearly stated in examination in chief that she is prepared to contest the suit and therefore, the suit should be revived, on behalf of the opposite party one witness was examined in support of the rejoinder. Witness No. 1 is himself opposite party No. 1. In the examination in chief he has stated that the applicant has filed the miscellaneous application with the intention of causing harassment to him because the applicant had information about the suit. Therefore, the application should be dismissed.

It was directed:

After hearing both parties and after perusal of records, I find that the applicant has furnished satisfactory reasons to show that he had no information about developments in Suit No. 67/90 and his application for revival is fit to be accepted but will cost.

Therefore the miscellaneous application is accepted subject to cost of Rs. 200/- under Order 9 Rule 13. And the ex parte decree in original suit No. 67/90 is rescinded.

6. A revision application was filed there against.

The High Court passed the impugned judgment only on the premise that as all the defendants had filed a joint written statement, there was no occasion for the court to set aside the ex parte decree stating that if a fraud had been practised upon the court, an appropriate proceeding should have been initiated therefor. It was held:

If the contention of the defendants 1 and 6 is to the effect that the decree was obtained by fraud and collusion, then this matter need be pleaded by facts and circumstances so as to take a declaration under Section 44 of the Evidence Act, 1872. This step was not taken. Suffice it to say that if there be a fraud it is a criminal act and there is no limitation if such action is to be taken by a party to the suit.

Thus, at present the order dated 20 February, 2003 in Miscellaneous Case No. 19 of 1998: Mahesh Yadav and Ors. v. Rajeshwar Singh and Ors. MANU/SC/8463/2008 : AIR2009SC1064 Permitting setting aside an ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure is set aside.

7. Mr. Goutam Prasad, learned Counsel appearing on behalf of the appellant, would submit that the High Court failed to take into consideration that only because a joint written statement was filed, the same was binding upon the appellants although some of them had been won over by the plaintiff.

8. Mr. H.L. Agrawal, learned senior counsel appearing on behalf of the respondents, however, supported the judgment.

9. Order IX Rule 13 of the Code of Civil Procedure reads as under:

13. Setting aside decree ex parte against defendants.--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court, shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.

Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.

10. Indisputably, two of the defendants had entered into compromise with the plaintiff. They have accepted the title of the plaintiff.

The contents of the written statement filed by the appellants had not been noticed by the High Court. The High Court furthermore failed to consider that according to the appellants herein, talks of compromise started by and between the defendant Nos. 1 and 6 and the plaintiff. They cross-examined the witnesses of the plaintiff but did not adduce any evidence. It was on the aforementioned premise alone, the plaintiff was found to be in possession of the suit land and a decree was passed.

11. There is nothing on record to show that the appellants herein were being represented by the same learned advocate. If they were represented by different advocates, it is not known as to whether the order of transfer of the case was brought to the notice of the learned advocate for the appellants. The High Court, in our opinion, therefore may not be correct in holding that only because a joint written statement was filed, an application for ex parte decree was not maintainable. In fact, the same was held to be maintainable by the learned Civil Judge by an order dated 26.7.2000.

12. The proviso appended to Order IX Rule 13 of the Code of Civil Procedure postulates that when an ex parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, the Court is not powerless to do so. If an application for setting aside the ex parte decree was maintainable at the instance of the appellants, we fail to understand as to why a separate suit was required to be filed. When an ex parte decree is passed, the defendant may have more than one remedies. He may file a suit contending that the decree was obtained fraudulently. He may file an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. He may prefer an appeal from the ex parte judgment and decree. In a given case, he may also file a review application.

13. In Bhanu Kumar Jain v. Arcbana Kumar and Anr. MANU/SC/1079/2004 : AIR2005SC626 , this Court held:

26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true.

It was, however, observed:

28. It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions.

14. The judgment of the High Court, therefore, in our opinion is not sustainable.

While, however, saying so, we must express our dissatisfaction in the manner in which the learned Civil Judge has passed the order impugned before the High Court. The said order is an unreasoned one. The evidence adduced on behalf of the appellants were not analysed for arriving at a finding as to whether a case for setting aside an ex parte decree has been made out by the appellants or not. The matter had not been considered as is required in terms of Order IX Rule 13 of the Code of Civil Procedure. An order setting aside the ex parte decree being a judicial order should have been supported by reasons. The learned Judge could not have allowed the said application without following the legal principles on the basis whereof such an order could be passed.

We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India, while setting aside the order passed by the High Court also set aside the order passed by the learned Civil Judge. The Civil Judge should consider the matter afresh on merit and pass a reasoned order.

15. Appeal is allowed with the aforementioned directions. However, in the facts of and circumstances of this case, parties shall bear their own costs.

Rights of Sons and Grandsons in the Partitioned property

 
A father who receives property through partition has right to sell it before a son  is born to him.   The son gets a share in the partitioned party of his father. 

Further as required Under Section 91 of the Evidence Act a document itself has to be produced to prove its contents.  Having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved Under Section 91 of the Evidence Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5415 of 2011

Decided On: 02.07.2018

Shyam Narayan Prasad Vs. Krishna Prasad and Ors.

Hon'ble Judges/Coram:
Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation: (2018) 7 SCC 646

1. Defendant No. 1, Shyam Narayan Prasad is the Appellant before us. In this appeal he has questioned the legality and correctness of the judgment and decree dated 15.5.2006 passed by the High Court of Sikkim in RSA No. 1 of 2005.

2. One Gopalji Prasad is the common male ancestor of the parties. The Appellant and Laxmi Prasad, 5th Respondent herein, are the sons of Gopalji Prasad. Respondent Nos. 1 to 3 are the sons of Laxmi Prasad and Respondent No. 4 is the son of the 1st Respondent. Respondent Nos. 1 to 4 are the Plaintiffs in the suit, being Civil Suit No. 10 of 2001, and the Appellant and Respondent Nos. 5 and 6 are the Defendants. No relief has been claimed against Respondent No. 6 (Defendant No. 3 in the suit). For the sake of convenience, parties are referred to by the ranking in the trial court.

3. The Plaintiffs filed the aforesaid suit against the Defendants for a declaration that the document dated 30.1.1990 (Exhibit P2) executed between Defendant Nos. 1 and 2 is invalid and for certain other reliefs. According to them, the family property was partitioned on 31.7.1987 between Gopalji and his five sons, namely, Laxmi Prasad, Ayodhya Prasad, Shyam Narayan Prasad, Dr. Onkarnath Gupta and Suresh Kumar. In the partition Gopalji has retained some of the properties for his personal use till his death. Laxmi Prasad got his share of property along with half portion of existing two-storey RCC building situated at Singtam Bazar, East Sikkim, wherein presently a liquor shop is being run. Shyam Narayan Prasad was allotted a shoe shop at Manihari which is run on a rented premises owned by Gouri Shankar Prasad. He was also allotted other properties in the partition.

4. After the partition, the sons of Gopalji were put in possession of their share of the properties. However, Laxmi Prasad (Defendant No. 2) in collusion with his brother Shyam Narayan Prasad (Defendant No. 1) executed an agreement dated 30.1.1990 exchanging the liquor shop at Singtam Bazar, East Sikkim with the shoe shop at Manihari. It is their contention that since the property is an ancestral property, they also have a share in the property which had fallen to the share of Defendant No. 2 and that he has no legal right to exchange the property with Defendant No. 1. It was further contented that the deed of exchange dated 30.1.1990 entered into between Defendant Nos. 1 and 2 is in relation to an immovable property. Since the said document has not been registered, it has no legal effect.

5. Defendant No. 1 has filed the written statement stating that the suit properties are not ancestral properties. He has denied the contention of the Plaintiffs that the document dated 30.1.1990 is not a valid document. It was further contended that the said document has already been given effect from the date of its execution.

6. Defendant No. 2 has filed the written statement contending that for the alleged exchange deed, Defendant No. 1 had approached him for exchanging only the business of liquor shop at Sikkim with that of shoe shop at Gangtok for convenience and that he had signed the document in good faith believing that the exchange deed was only for the two businesses, and further, admitted that exchange deed was made and executed behind the back of the Plaintiffs.

7. On the basis of the pleadings of the parties, the trial court has framed relevant issues. Parties have led evidence in support of their respective contentions. On appreciation of the materials on record, the trial court had come to the conclusion that the property in question is an ancestral property and that the Plaintiffs being the sons and grandson of Defendant No. 2, they have also equal share in the property allotted to him in the partition. The suit was accordingly decreed.

8. The first Defendant challenged the said judgment and decree by filing an Appeal No. 2 of 2003 before the District Judge, Sub-Division-II, Sikkim at Gangtok. The District Judge by judgment and decree dated 19.11.2004 allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. The Plaintiffs filed a Second Appeal No. 1 of 2005 challenging the judgment and decree of the District Judge before the High Court. The High Court has set aside the judgment and decree of the District Judge and restored the judgment and decree of the trial court.

9. The contention of the learned Counsel for the Appellant/Defendant No. 1 is that the entire property of Gopalji was the self acquired property and he has divided the property amongst his five sons by a deed of partition dated 1.3.1988. According to the deed of settlement dated 30.1.1990 between Defendant Nos. 1 and 2, only the businesses were transferred and not the buildings. Therefore, the sons and the grandson of Defendant No. 2 have no right to seek cancellation of the said deed. There is no exchange of immovable property as contended by the Plaintiffs. Therefore, the settlement deed does not require registration. The parties have acted upon the said agreement. In the circumstances, possession of the Appellant is protected Under Section 53A of the Transfer of Property Act, 1882 (for short 'the T.P. Act').

10. On the other hand, learned advocate appearing for the Respondent Nos. 1 to 4/Plaintiffs submits that the subject matter of the deed of settlement dated 30.1.1990 is a joint family property. The recitals of this document clearly show that there is a transfer of immovable property. The Plaintiffs, being the lineal descendants of Defendant No. 2, are the members of the coparcenary. They have a right and interest over the property in question. The settlement deed dated 30.1.1990 has not been registered. Hence, it is inadmissible in evidence. Defendant No. 1 has not pleaded in his written statement that he has taken the possession of the property in part performance of the contract. Therefore, it is not open for him to claim the benefit of Section 53A of the T.P. Act. Learned Counsel prays for dismissal of the appeal.

11. Having regard to the contentions urged, the first question for consideration is whether the property allotted to Defendant No. 2 in the partition dated 31.07.1987 retained the character of a coparcenary property. Admittedly, Gopalji Prasad and his five sons partitioned the property by a deed of partition dated 31.07.1987. It is clear from the materials on record that Gopalji Prasad retained certain properties in the partition. Certain properties had fallen to the share of Defendant No. 2 who is the father of Plaintiff Nos. 1 to 3 and grandfather of Plaintiff No. 4. Certain properties had fallen to the share of the first Defendant. The trial court has held that the properties are ancestral properties. The High Court has confirmed the finding of the trial court. We do not find any ground to disagree with this finding of the courts below.

12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.

13. In C. Krishna Prasad v. C.I.T., Bangalore, MANU/SC/0240/1974 : 1975 (1) SCC 160, this Court was considering a similar question. In the said case, C. Krishna Prasad, the Appellant along with his father Krishnaswami Naidu and brother C. Krishna Kumar formed Hindu undivided family up to October 30, 1958, when there was a partition between Krishnaswami Naidu and his two sons. A question arose as to whether an unmarried male Hindu on partition of a joint Hindu family can be assessed in the status of undivided family even though no other person besides him is a member of the family. It was held that the share which a coparcener obtains on partition is ancestral property as regards male issue. It was held as under:

The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of Mulla's Principles of Hindu Law, 14th Ed.). A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten.

14. In M. Yogendra and Ors. v. Leelamma N. and Ors. MANU/SC/1433/2009 : 2009 (15) SCC 184, it was held as under:

It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid."

15. In Rohit Chauhan v. Surinder Singh and Ors. MANU/SC/0692/2013 : 2013 (9) SCC 419, a contention was raised by the Defendant No. 1 that after partition of the joint Hindu family property, the land allotted to the share of Defendant No. 2 became his self acquired property and he was competent to transfer the property in the manner he desired. It was held that the property which Defendant No. 2 got by virtue of partition decree amongst his father and brothers was although separate property qua other relations but it attained the characteristics of coparcenary property the moment a son was born to Defendant No. 2. It was held thus:

A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the Plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of Plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of Plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which Defendant 2 got on partition was an ancestral property and till the birth of the Plaintiff he was the sole surviving coparcener but the moment Plaintiff was born, he got a share in the father's property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of Defendant 2 allotted to him in partition was a separate property till the birth of the Plaintiff and, therefore, after his birth Defendant 2 could have alienated the property only as karta for legal necessity. It is nobody's case that Defendant 2 executed the sale deeds and release deed as karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed, the parties can work out their remedies in appropriate proceeding.

16. Therefore, the properties acquired by Defendant No. 2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31.07.1987. The property which had fallen to the share of Defendant No. 2 retained the character of a coparcenary property and the Plaintiffs being his sons and grandson have a right in the said property. Hence, it cannot be said that the suit filed by the Plaintiffs was not maintainable.

17. This takes us to the next question as to whether the exchange deed at Exhibit P2 is admissible in evidence or not. The transfer of ownership of their respective properties by Defendant Nos. 1 and 2 was done through Exhibit P2 deed of exchange. It was contended by Defendant No. 1 that the exchange was only of the businesses. However, a careful perusal of Exhibit P2 clearly shows that the RCC building is also a subject matter of the deed of exchange. The value of RCC building exceeds Rs. 100/- which is not in dispute. Section 118 of the TP Act defines 'exchange' as under:

118. "Exchange" defined.-When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

18. It is clear from this provision that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs. 100/- or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and above, it can be made only by a registered instrument. In the instant case, the exchange deed at Exhibit P2 has not been registered.

19. Section 49 of the Registration Act, 1908 provides for the effect of non-registration of the document which is as under:

49. Effect of non-registration of documents required to be registered.-No document required by Section 17 {or by any provision of the Transfer of Property Act, 1882 (4 of 1882)}, to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) Be received as evidence of any transaction affecting such property or conferring such power,

Unless it has been registered:

20. Section 17(i)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered Under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration Under Section 17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property.

21. In Roshan Singh and Ors. v. Zile Singh and Ors. MANU/SC/0679/1988 : 1988 (2) SCR 1106, this Court was considering the admissibility of an unregistered partition deed. It was held thus:

......Section 17(i)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property......
Two propositions must therefore flow:
(1) A partition may be affected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872.

22. It is clear from the above judgment that the best evidence of the contents of the document is the document itself and as required Under Section 91 of the Evidence Act the document itself has to be produced to prove its contents. But having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved Under Section 91 of the Evidence Act. Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be proved Under Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit P2.

23. The last contention of the learned Counsel for the Appellant is in relation to application of Section 53A of the T.P. Act. It is well settled that the Defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the first Defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the first Defendant/Appellant to claim the benefit available Under Section 53A of the T.P. Act.

24. In the result, this appeal fails and it is accordingly dismissed. There will be no order as to costs.

If Costs not paid then the opposite party loses his right to cross examine or further prosecution

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7554-7555 OF 2009

[Arising out of SLP [C] Nos.2203-2204 of 2008]

Manohar Singh ... Appellant

Vs.

D. S. Sharma & Anr. ... Respondents

JUDGMENT

R.V.RAVEENDRAN, J.

Leave granted. Heard learned counsel.

2. The appellant filed a suit for damages against his erstwhile employer - National Thermal Power Corporation Ltd. (`NTPC' for short, second respondent herein) and its then General Manager in the District Court, Delhi. After conclusion of Plaintiff's evidence, the defendants' evidence was commenced. On 6.1.2004 the suit was listed for further evidence of defendants. One S. Joseph, (DW2), whose affidavit had been filed by way of an examination-in-chief, was present in court for being cross-examined by the plaintiff. The plaintiff requested for an adjournment on the ground that his counsel was busy elsewhere. The case was therefore adjourned to the next day (7.1.2004). Again, plaintiff sought time on the ground that his counsel was otherwise busy. When the court asked the plaintiff to cross-examine the said witness, as he had earlier cross-examined DW-1 without the assistance of a counsel, plaintiff refused to do so. The witness had come all the way from Durgapur for giving evidence. The court therefore adjourned the matter to 9.2.2004, subject to payment of costs of Rs.5000 by the plaintiff. On 9.2.2004 also, S. Joseph (DW-2) was present, but the plaintiff sought an adjournment on the ground that he wanted to move an application for transfer of the suit. The request for adjournment was opposed on the ground that the witness had come from Durgapur by air. The suit was however adjourned to 9.3.2004. On 9.3.2004, plaintiff submitted that he had already moved an application for transfer (alleging that he had lost faith in the Presiding Officer).

The suit was adjourned to 7.4.2004. The suit was thereafter adjourned to 20.7.2004, 31.8.2004, 5.10.2004, 10.11.2004, 17.1.2005, 23.2.2005, and 7.4.2005 on the ground that the transfer application filed by the plaintiff was pending before the District Judge.

3. On 24.3.2005, the transfer petition filed by the plaintiff was allowed and his suit was withdrawn from the file of Shri O.P. Gupta, Addl. District Judge and assigned to the file of another Additional District Judge, with a direction to the parties to appear on 1.4.2005. On that day, the new trial Judge directed the plaintiff to deposit Rs.5,000 towards the travel expenses of DW-2 before he could cross-examine DW2. The matter was adjourned to 27.4.2005. On 27.4.2005, the plaintiff filed an application for waiver of costs. That application was dismissed and the case was posted to 27.7.2005 for further evidence. On 27.7.2005, the plaintiff failed to deposit the costs. The court recorded that costs were not paid in spite of repeated opportunities. Relying upon Section 35B of the Code of Civil Procedure (for short `the CPC'), the trial court dismissed the suit for failure to pay the costs in spite of several opportunities. The said dismissal order dated 27.7.2005 was challenged by way of a revision before the Delhi High Court. The High Court dismissed the appeal by order dated 21.5.2007. It upheld the decision of the trial court holding that the provisions of section 35B were mandatory and if the costs levied were not paid "the only course open to the court is to disallow the prosecution of the suit" and, that meant the dismissal of the suit. Appellant's petition for review was dismissed on 7.9.2007. The orders dated 21.5.2007 and 7.9.2007 are challenged in these appeals by special leave.

4. The appellants contended that having regard to the provisions of section 35B of CPC, if costs levied on plaintiff are not paid, the court can only stop further prosecution of the suit by the plaintiff. It is submitted that section 35B does not confer power to dismiss the suit for non- payment of costs. Learned counsel for the second respondent, on the other hand, supported the judgment of the trial court, as affirmed by the High Court.

5. Section 35B of CPC deals with costs for causing delay. Relevant portion of the said section extracted below :

"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.

Section 35B provides that if costs are levied on the plaintiff for causing delay, payment of such costs on the next hearing date, shall be a condition precedent to the further prosecution of the suit by the plaintiff. Similarly, if costs are levied on the defendant for causing delay, payment of such costs on the next date of hearing, shall be a condition precedent to the further prosecution of the defence of the suit by the defendant. This takes us to the meaning of the words "further prosecution of the suit" and "further prosecution of the defence". If the Legislature intended that the suit should be dismissed in the event of non-payment of costs by 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. On the other hand, Legislature stated in the rule that payment of costs on the next date shall be a condition precedent to the further prosecution of the suit by plaintiff (where the plaintiff was ordered to pay such costs), and a condition precedent to the further prosecution of the defence by the defendant (where the defendant was ordered to pay such costs). This would mean that if the costs levied were not paid by the party on whom it is levied, such defaulting party is prohibited from any further participation in the suit. In other words, he ceases to have any further right to participate in the suit and he will not be permitted to let in any further evidence or address arguments. The other party will of course be permitted to place his evidence and address arguments, and the court will then decide the matter in accordance with law. We therefore reject the contention of the respondents that section 35B contemplates or requires dismissal of the suit as an automatic consequence of non-payment of costs by plaintiff.

6.  We may also refer to an incidental issue. When section 35B states that payment of such costs on the date next following the date of the order shall be a condition precedent for further prosecution, it clearly indicates that when the costs are levied, it should be paid on the next date of hearing and if it is not paid, the consequences mentioned therein shall follow. But the said provision will not come in the way of the court, in its discretion extending the time for such payment, in exercise of its general power to extend time under section 148 of CPC. Having regard to the scheme and object of section 35B, it is needless to say that such extension can be 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 35B were itself levied for causing delay.

7. We may also refer to the provisions of Rule 1 of Order XVII of CPC which deals with grant of time and adjournments. The said provision is extracted below :

"1. Court may grant time and adjourn hearing.--

(1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during hearing of the suits.

(2) Costs of adjournment.--In every such case the Court shall fix a day for the further hearing of the suit, and shall make such orders as to costs occasioned by the adjournment of such higher costs as the Corut deems fit:

Provided that, --

(a) when the hearing of the suit has commenced, it shall be continued from day to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary,

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party,

(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment,

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for a adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time,

(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.

It is evident from Rule 1(2) proviso (e) of Order 17 that where a witness is present in court but the other side is not ready to cross-examine the witness, the court can dispense with his cross-examination. But where a genuine and bona fide request is made for adjourment, instead of resorting to forfeiture of the right to cross-examine, the court may grant time by levying costs.

8. A conspectus of the above provisions clearly demonstrates 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 and closing the evidence of the witness. If the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party.

9. In this case, the plaintiff has harassed the defendants and its witness by seeking repeated adjournments. In view of it, plaintiff's right to cross-examine DW2 stands forfeited. However, as costs were levied, but were not paid, the court should have closed the evidence of DW2, permitted the defendants to produce any further evidence (without any right to plaintiff to cross-examine such witnesses) and then ought to have proceeded to dispose of the suit on merits by considering the material available and hearing the arguments of defendant. The court could not have dismissed the suit.

10. In view of the above, we allow these appeals, set aside the judgments of the High Court and the trial court, restore the suit to its file, subject to the following :

(i) The right of the plaintiff to cross-examine DW2 stands forfeited and he is barred from prosecuting the suit further.

(ii) The trial court shall however permit the defendants to let in any further evidence, hear arguments and then dispose of the suit.

(iii) However, if plaintiff-appellant tenders the costs with an appropriate application under section 148 CPC, the trial court may consider his request in accordance with law. Even if the court extends the time for deposit, permits the plaintiff to pay the costs and prosecute the suit further, that will not entitle the plaintiff to cross-examine DW2.

....................................J. (R V Raveendran)

...................................J. (G S Singhvi)

New Delhi

November 13, 2009.