GOPAL DASS vs RAJPUT SATHANIA SABHA
- Court
- High Court of Himachal Pradesh
1 2026:HHC:14222
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
Civil Revision No. 59 of 2022
High Court of H.P.
Reserved on : 20.3.2026
Decided on: 30.4.2026
Gopal Dass
… Petitioner
Versus
Rajput Sthania Sabha
…Respondent
_____________________________ ______________
Coram
Hon’ble Mr. Justice Virender Singh, Judge
Whether approved for reporting? yes
___________________________________________________
For the Petitioner: Mr. Naveen Kumar and Mr.
Kiran Kumar, Advocates.
For the Respondent : Mr. C.N. Singh, Advocate.
Virender Singh, Judge
Petitioner Gopal Dass, by way of present petition,
under Section 115 of the CPC, has assailed the orders
dated 2.1.2020 and 24.2.2022, passed by the Court of
learned Civil Judge (Court No. 4), Shimla, H.P.
(hereinafter referred to as ‘the trial Court’), in Civil Suit
No. 1504 of 2019, titled as, ‘Rajput Sthaniya Sabha
versus Gopal Dass’.
2. By way of order dated 2.1.2020, the learned trial
Court has struck off the defence of the defendant, as he
could not file written statement, nor deposited the costs,
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as per order dated 4.12.2019. Vide order dated
24.2.2022, the learned trial Court has dismissed the
High Court of H.P.
application, filed by the defendant, under Order 6 Rule
15(2), read with Section 151 CPC.
3. For the sake of convenience, parties to the lis are
hereinafter referred to, in the same manner, in which,
they were referred to, by the learned trial Court.
4. Brief facts, leading to filing the present Revision
petition, before this Court, as borne out from the
documents, annexed with the petition, are that plaintiff
Rajput Sthaniya Sabha, Shimla has filed the suit for
recovery of possession of two room set with kitchen,
toilet & lobby at Skipton Villa, near Ritz Theater, Shimla,
(hereinafter referred to as ‘the suit premises’), and for
recovery of use and occupation charges, against the
defendant. The said suit has been filed on the ground
that the area known as ‘Skipton Villa’, comprised in
khata/khatauni No. 228/334, khasra Nos. 507 to 524,
526 and 531 to 533, kita 22, measuring 887-02 sq.
meter, is a built up area.
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5. According to the plaintiff, one Sharu Ram was
Chowkidar with the plaintiff-society and the suit
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premises was given to him, for residential purpose. After
the death of Sharu Ram, his son, Gopal Dass (plaintiff)
continued to occupy the premises, despite requests
made by the plaintiff-society to vacate the same. When,
the premises were not vacated, despite oral requests,
then, legal notice dated 24.1.2018 was issued to the
defendant, but, the same has not been replied, nor
complied with.
6. On the basis of above facts, relief, as claimed in
the suit, has been sought.
7. Defendant, in the suit, put appearance and
sought time to file written statement. Ultimately, he has
moved application under Section 148 read with Section
151 of the CPC. Prior to that, he has taken three effective
opportunities, as he has put appearance, before the
learned trial Court on 25.2.2019. The said application
was allowed by the learned trial Court, vide order dated
4.12.2019, by permitting the defendant to file written
statement, on 2.1.2020, subject to costs of Rs. 1000/-.
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Instead of filing the written statement, and to deposit the
costs, defendant moved an application, under Order 6
High Court of H.P.
Rule 15(2) CPC, however, vide order dated 2.1.2020,
defence of the defendant was struck off, on the ground
that he has neither filed written statement, nor
deposited the costs of Rs. 1000/-, so imposed. The
application under Order 6 Rule 15(2) CPC was
dismissed, vide order dated 24.2.2022.
8. Aggrieved from the aforesaid orders, the present
Revision petition has been filed.
9. The orders, passed by the learned trial Court, as
referred to above, have been challenged by the defendant
on the ground that on 4.12.2019, his application for
extension of time to file written statement has been
allowed, and the matter was adjourned for 2.1.2020. On
that date, the defendant moved the application under
Order 6 Rule 15(2), read with Section 151 of the CPC,
with a prayer to direct the plaintiff to supply necessary
particulars. On the said date, the learned trial Court
directed the plaintiff to file reply to the said application,
however, according to the defendant, his counsel
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remained under the impression that reply has been
called to the application under Order 6 Rule 15(2), read
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with Section 151 of the CPC, and after disposal of the
application, he will be allowed to file the written
statement.
10. Order dated 2.1.2020 has been assailed on the
ground that the learned trial Court has erred in law by
not appreciating the fact that application under Order 6
Rule 15 (2) CPC is pending, as such, there is no occasion
for the learned trial Court to strike off the defence of the
defendant.
11. Highlighting the fact that the application under
Order 6 Rule 15(2) read with Section 151 CPC remained
pending, till 24.2.2022, it has been prayed that on
account of pendency of the said application, learned
counsel for the defendant remained under the bonafide
belief that the written statement will be filed after
disposal of the said application. However, on 24.2.2022,
it was revealed that defence of the defendant has already
been struck off, vide order order 2.1.2020.
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12. On the basis of above facts, Mr. Naveen Kumar
and Mr. Kiran Kumar, Advocates, appearing for the
High Court of H.P.
petitioner/defendant have prayed that the present
revision petition may be allowed.
13. The perusal of the record shows that during
pendency of the Revision petition, before this Court, on
2.12.2025, learned counsel representing the plaintiff,
placed on record the settlement deed, dated 19.11.2025,
upon which, this Court has passed the following order,
on 2.12.2025:
“Learned counsel for the respondent has filed a
copy of settlement deed dated 19.11.2025 entered
inter se the parties. Based on the aforesaid, it is
submitted that the matter inter se the parties
stands amicably settled. Photocopy of the same is
taken on record and a copy of the same also stands
supplied to the learned counsel for the petitioner.
The original of the settlement deed has been seen
and returned to the learned counsel for the
respondent.
In view of the aforesaid, learned counsel for the
respondent submits that an appropriate application
for withdrawal of the suit shall now be filed before
the learned trial Court.
In view thereof, list the matter after four weeks.”
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14. On 5.3.2026, defendant, as well as,
Secretary of the plaintiff Society were directed to be
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present, before this Court. In pursuance of directions,
issued vide order dated 5.3.2026, both the parties have
placed on record certain documents, by way of CMPs No.
4922 and 4923 of 2026. The documents were ordered to
be taken on record.
15. By way of CMP No. 4922 of 2026, the
defendant has placed on record the letter dated 1.3.2026
written by the defendant to his bank alongwith cheque
deposit slip/form, the copy of cheque of Rs. 4,50,000/-
and deposit receipt, dated 5.3.2026, whereas, the
plaintiff-society by moving CMP No. 4923 of 2026, has
placed on record the copy of settlement deed, which has
taken place between the parties, alongwith receipts of
the cheque and copy of the pass book.
16. In view of the stand, as taken by the
defendant in CMP No. 4922 of 2026, it seems that the
factum of compromise has been disputed. As per the
stand taken in the application, bearing CMP No. 4922 of
2026, a sum of Rs. 4,50,000/- was deposited by the
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defendant with the help of his family members, on
5.3.2026, when this Court has called the parties to
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appear in person, before this Court.
17. The cheque in question was deposited in
the bank account of defendant Gopal Dass, on
19.11.2025 and the cheque was issued, on 18.11.2025,
in the name of Gopal Dass, by the General Secretary of
the plaintiff.
18. As per the settlement deed, which has taken
place between the parties, on 19.11.2025, defendant
Gopal Dass has undertaken to hand over the vacant
possession of the premises to the plaintiff. In lieu of that,
plaintiff-Society has paid a sum of Rs. 4,50,000/-, vide
cheque bearing No. 3501052. The said cheque was
submitted on 19.11.2025 and the amount was re-
deposited by the defendant, in the account of plaintiff
society, on 5.3.2026, that too, on the date, when, the
parties were directed to place on record the relevant
documents.
19. It seems that the defendant firstly enjoyed the
usufruct of the amount of Rs. 4,50,000/-, deposited, in
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his account on 19.11.2025 and when, the matter was
brought to the notice of this Court by learned counsel for
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the plaintiff by placing on record the copy of compromise
deed, then, the said amount has been re-deposited by
the defendant, that too, without permission of the Court.
20. If the order dated 2.1.2020 is seen in the light of
the order dated 4.12.2019, by virtue of which, the
application of the defendant, under Section 148 of the
CPC for extension of time, has been allowed, then, it can
be said that the very motive of the defendant, right from
the inception of the lis, is to delay the proceedings of the
case, on one pretext or the other.
21. The learned trial Court, on 4.12.2019, in
unequivocal terms, directed the defendant to file the
written statement, that too, subject to last opportunity
and payment of costs, as condition precedent. The
relevant portion of the order dated 4.12.2019 is
reproduced as under:
“Therefore, keeping in view the aforesaid factors involved
in the present case and law cited above, this court deems
it fit to allow the instant application. As such, the instant
application is hereby allowed, subject to cost of 1000/-. ₹
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Application stands disposed of. Be tagged after due
registration.
High Court of H.P.
Be put up for filing of written statement on 02.01.2020. It
is made clear that no further opportunity shall be
provided for filing the written statement.”
22. Even otherwise, on 2.1.2020, instead of filing the
written statement and depositing the costs, so imposed,
he has adopted a novel idea to linger on the proceedings
by moving application under Order 6 Rule 15(2), read
with Section 151 of the CPC. The said application was
dismissed vide order dated 24.2.2022.
23. On 2.1.2020, when, the plaintiff was directed to
file reply to the application, the same was filed on
19.3.2020, and thereafter, time was taken by the
defendant to file rejoinder. On 1.10.2021, the learned
trial Court has passed the following order:
“Time prayed for filing rejoinder to application under
Order 6 Rule 15(2) CPC. Allowed subject to last
opportunity. Be listed for same on 16.11.2021.”
24. Even on 16.11.2021, rejoinder has not been
filed and when despite last and exceptional last
opportunity, rejoinder has not been filed, then, his right
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to file rejoinder has been struck off, by the learned trial
Court, vide order dated 1.12.2021.
High Court of H.P.
25. The order dated 2.1.2020 has been passed by
the learned trial Court on the ground that despite last
opportunity granted to the defendant to file written
statement, that too, subject to costs of Rs. 1000/-, he
has neither filed written statement, nor deposited costs,
so imposed.
26. The learned counsel for the defendant-petitioner
could not satisfy the judicial conscience of this Court as
to why application under Order 6 Rule 15 (2) CPC has
not been filed, when, the case was listed for filing the
written statement. The defendant was aware about the
fact that the written statement has been ordered to be
filed on that date, subject to last opportunity, that too,
on depositing the costs, as pre-condition to do so.
27. On 15.3.2019, the learned trial Court has
directed the defendant to file written statement and
right from 15.3.2019, till moving the application under
Section 148 read with Section 151 CPC, on 2.7.2019,
the same was not filed. Thereafter, reply to the
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application was filed on 5.9.2019, and the same was
decided on 4.12.2019.
High Court of H.P.
28. In this background, this Court is of the view
that the learned trial Court has rightly passed the order
dated 2.1.2020 by striking off the defence of the
defendant. Admittedly, he has also not deposited the
costs, as imposed vide order dated 4.12.2019, nor filed
the written statement. The learned trial Court has
imposed the costs, under Section 35 B of the Code of
Civil Procedure, as a condition precedent, to file the
written statement, that too, subject to last opportunity.
Provisions of Section 35 B of the CPC, are reproduced,
as under:
“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,
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where the plaintiff was ordered to pay such costs,(b)the
defence by the defendant, where the defendant was
ordered to pay such costs.Explanation .-Where
separate defences have been raised by the defendants
or groups of defendants, payment of such costs shall be
a condition precedent to the further prosecution of the
defence by such defendants or groups of defendants as
have been ordered by the Court to pay such costs.
High Court of H.P.
2. The costs, ordered to be paid under sub-section (1),
shall not, if paid, be included in the costs awarded in
the decree passed in the suit; but, if such costs are not
paid, a separate order shall be drawn up indicating the
amount of such costs and the names and addresses of
the persons by whom such costs are payable and the
order so drawn up shall be executable against such
persons.”
29. The learned trial Court, in the present case, has
struck off the defence of the defendant on the ground of
non-payment of costs, as well as, non-filing of the
written statement, despite the last opportunity. The
learned trial Court has rightly struck off the defence of
the defendant, as there is nothing on the record to the
effect that any request was made by the defendant to
extend the time to deposit the costs. When, the costs have
been imposed under Section 35 B of the CPC, then, the
order passed by the learned trial Court, does not require any
interference, in view of law laid down by Full Bench of
Hon’ble Punjab & Haryana High Court, in case titled as,
‘Anand Parkash versus Bharat Bhushan Rai & Anr.’,
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reported in AIR 1981 P&H 269. Relevant paragraphs 22
and 33 of the judgment are reproduced as under:
High Court of H.P.
“22. It was contended by Mr. Goel, learned counsel for
the respondent, that though word 'shall' has been used
in the Section but by user of that word the power of the
Court for granting more time for paying the costs is not
taken away. I am afraid, I am, unable to agree with the
contention of the learned counsel for the respondent.
There might have been some merit in the contention of
Mr. Goel if the word 'shall' had been used alone as in
that event the judgment cited for the proposition that
mere use of word 'shall' may not make a statute
mandatory, would have been of some relevance. But in
the instant case, a bare scrutiny of the provisions of
Section 35B would show that the Legislature had made
its intention absolutely clear and beyond the pale of any
doubt that the provision are mandatory in nature and
any non-compliance with the same would result in
penal consequences as envisaged therein. When the
provision of Section 35B are analysed we find that the
Legislature was not satisfied by using the word 'shall'
only and this word shall' in the Section is qualified by
the words 'condition precedent'. Where a statute
declares that doing of a particular thing shall be a
condition precedent, then obviously the intention is to
make it a peremptory mandate. A condition precedent is
a condition which must be performed, if the Legislature
had not intended to make the provisions of the Section
mandatory, then it was not at all necessary for the
Legislature to have qualified the word 'shall' by using
words 'condition precedent'. The Legislature has made
its intention absolutely clear by using the words 'shall
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be a condition precedent' that the provision of this
section are mandatory in nature and that any non-
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compliance of these provision would be fatal. To me the
words 'condition precedent' qualifying the word ' shall'
appear to be the clincher for interpreting the provisions
of Section 35B are mandatory. As has been observed
earlier 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. In my view, on
the plain language of the section 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. When a party seeks adjournment, he pays
the costs for his own folly or mistake which results into
inconvenience and unnecessary harassment of the
other side. He does not do so as an act of benevolence.
Moreover, a litigant is excepted to show full respect to
the words of the Court, he cannot be permitted to ignore
them or flout them with impunity. In case he opts to
disregard the orders of the court and fails to pay the
costs, then he must suffer penal consequences. The
duty of paying costs is on the party who has been
ordered to pay the costs. The Court or the party who
has to receive costs, is not obliged to remind this
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delinquent party to perform its duty. The whole purpose
of enacting this provision would be frustrated if the
High Court of H.P.
same is held to be directory. It may again be
emphasised that the Courts are not required to find out
as to what was the intention of the party in obtaining
adjournment as the moment as adjournment is
obtained on the date on which a suit is fixed for hearing
or for taking any step therein, then the same results in
the delay of the decision of the suit. One of the essential
requirements for attracting the applicability of this
provision is that the date has to be when a suit is fixed
for hearing or for taking any step therein. If the date is
only for depositing of process fee or for doing some such
act; then it cannot be said that the suit was fixed for
hearing or for taking any step therein. When once the
ingredients of the Section are proved, then no other
extraneous consideration would be taken into account
by the Courts.
(self emphasis supplied)
33. In accordance with the majority decision it is held
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
consideration would weigh with the Court in fenere as
the case may be and that the delinquent party.
However, where the costs are not paid as a result of the
circumstances beyond the control of the defaulting
party. Then Section 148 of the Code in favour of the
defaulting party if a strong case is made out for the
exercise of such jurisdiction.”
(self emphasis supplied)
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30. So far as the order dated 24.2.2022 is
concerned, the defendant by way of this application,
High Court of H.P.
has sought direction to the plaintiff to disclose the date
and year of the alleged employment of Sharu Ram, his
father, as Chowkidar, date of his death and date and
year of the alleged request, made by the plaintiff-Society
to vacate the suit premises. The defendant is not a
stranger, but son of Sharu Ram and in paras-4 and 5 of
the plaint, date and year of the alleged request made by
the plaintiff to vacate the premises, has clearly been
mentioned.
31. Learned counsel for the defendant-petitioner
could not satisfy the judicial conscience of this Court as
to how date and year of the alleged employment of
Sharu Ram is relevant for filing the written statement,
whereas, the date of death of Sharu Ram is in the
exclusive knowledge of the defendant, being his son.
Thus, it has rightly been pointed out by learned counsel
for the plaintiff that the present Revision Petition is
nothing, but to delay the proceedings.
32. In view of the discussions made above, this
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Court is of the view that the learned trial Court has
rightly passed the order dated 2.1.2020, by virtue of
High Court of H.P.
which, the defence of the defendant has been struck off,
on account of non-filing of the written statement,
despite last opportunity, that too, subject to costs of Rs.
1000/-, which, he has never deposited.
33. Similarly, the learned trial Court has rightly
dismissed the application under Order 6 Rule 15(2)
CPC, vide order dated 24.2.2022, as the same seems to
have been moved, just to prolong the proceedings.
34. So far as the compromise, which has allegedly
taken place, during the pendency of the revision
petition, before this Court, is concerned, the defendant
has not accepted the same, as detailed above. As such,
no orders can be passed on the compromise. However,
the learned trial Court is at liberty to take into
consideration the said fact. Consequently, the present
Revision Petition is dismissed.
35. The parties to the lis are directed to appear
before the learned trial Court, on 6.5.2026, at 10:00
a.m. Since, the lis is pending before the learned trial
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Court, since the year 2018, as such, the learned trial
Court is requested to dispose of the matter, within a
High Court of H.P.
period of six months from the date of appearance of
parties, before it.
36. The pending application(s), if any, are also
disposed of.
(Virender Singh)
30.4.2026 Judge
Kalpana
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