The Himachal Pradesh High Court has reaffirmed that non-compliance with court-ordered costs under Section 35B of the CPC is not a mere procedural lapse but a fatal breach that justifies striking off a defendant’s defence. This judgment underscores the mandatory nature of cost payments as a condition precedent to further prosecution of a suit or defence, reinforcing judicial authority against dilatory litigation tactics.
Background & Facts
The Dispute
The plaintiff, Rajput Sthaniya Sabha, filed Civil Suit No. 1504 of 2019 seeking possession of two rooms with kitchen, toilet, and lobby at Skipton Villa, Shimla, and recovery of use and occupation charges. The suit was based on the allegation that the defendant, Gopal Dass, continued to occupy the premises after the death of his father, Sharu Ram, who had been permitted to reside there as Chowkidar. Despite oral requests and a legal notice dated 24.01.2018, the defendant refused to vacate.
Key Facts
- The suit premises are located in khata/khatauni No. 228/334, khasra Nos. 507 to 524, 526 and 531 to 533, kita 22, measuring 887.02 sq. meter.
- Sharu Ram, the defendant’s father, was employed as Chowkidar by the plaintiff society.
- The defendant, Gopal Dass, is the son of Sharu Ram and has been in continuous possession since his father’s death.
- Legal notice dated 24.01.2018 was issued by the plaintiff, but no response or compliance followed.
- The defendant filed no written statement despite multiple court dates.
Procedural History
- 15.03.2019: Trial Court directed defendant to file written statement.
- 02.07.2019: Defendant filed application under Section 148 read with Section 151 CPC seeking extension to file written statement.
- 05.09.2019: Plaintiff filed reply to the application.
- 04.12.2019: Trial Court allowed the application for extension, permitting filing of written statement on 02.01.2020, subject to deposit of Rs. 1,000 as costs under Section 35B CPC. The order explicitly stated: "No further opportunity shall be provided for filing the written statement."
- 02.01.2020: Defendant failed to file written statement or deposit costs. Instead, he filed an application under Order 6 Rule 15(2) CPC seeking disclosure of details from the plaintiff.
- 02.01.2020: Trial Court struck off the defendant’s defence for non-compliance with the 04.12.2019 order.
- 19.03.2020: Plaintiff filed reply to the Order 6 Rule 15(2) application.
- 01.10.2021: Trial Court granted last opportunity to file rejoinder, listing for 16.11.2021.
- 16.11.2021: Defendant failed to file rejoinder.
- 01.12.2021: Trial Court struck off defendant’s right to file rejoinder.
- 24.02.2022: Trial Court dismissed the Order 6 Rule 15(2) application.
- 12.06.2022: Defendant filed Civil Revision No. 59 of 2022 before the High Court.
- 02.12.2025: During pendency of revision, plaintiff filed settlement deed dated 19.11.2025.
- 05.03.2026: Both parties directed to appear before High Court.
- 05.03.2026: Defendant deposited Rs. 4,50,000 via cheque issued by plaintiff on 18.11.2025, but re-deposited into his own account on 19.11.2025 and later reversed on 05.03.2026 without court permission.
The Parties' Positions
For the Petitioner/Defendant
- Argued that the application under Order 6 Rule 15(2) CPC was pending on 02.01.2020, and therefore, the trial court erred in striking off the defence.
- Claimed bonafide belief that written statement would be filed after disposal of the disclosure application.
- Contended that the costs were not deposited due to misunderstanding of court procedure.
- Asserted that the settlement deed dated 19.11.2025 rendered the revision petition infructuous.
For the Respondent/Plaintiff
- Argued that the defendant repeatedly delayed proceedings.
- Highlighted that the 04.12.2019 order was clear, final, and conditional.
- Pointed out that the Order 6 Rule 15(2) application sought irrelevant details (e.g., date of employment of Sharu Ram), which the defendant, as the son, was in exclusive knowledge of.
- Emphasized that the defendant had already enjoyed the benefit of Rs. 4,50,000 under the settlement, then reversed the payment without court sanction.
Relief Sought
The petitioner sought quashing of the orders dated 02.01.2020 and 24.02.2022, restoration of his defence, and setting aside the dismissal of the Order 6 Rule 15(2) application. He also sought direction to treat the settlement deed as binding.
The Legal Issue
The central question was whether Section 35B of the CPC mandates automatic striking off of a defence when costs imposed as a condition precedent are not paid, even if a pending application under Order 6 Rule 15(2) CPC exists.
Arguments Presented
For the Appellant/Petitioner
The petitioner relied on the pendency of the Order 6 Rule 15(2) application to argue that the trial court acted prematurely in striking off the defence. He contended that the court should have waited for the resolution of the disclosure application before enforcing the cost condition. He cited Anand Parkash v. Bharat Bhushan Rai as supportive of procedural fairness, but failed to show any legal basis for suspending the mandatory effect of Section 35B.
For the Respondent/State
The respondent argued that Section 35B is mandatory and non-negotiable. The trial court had granted a last opportunity with explicit conditions. The defendant’s conduct demonstrated a pattern of delay: failure to file written statement for over 10 months, non-payment of costs, and filing of frivolous applications to prolong litigation. The settlement deed was not a valid compromise as it was unilaterally reversed and not filed before the trial court.
The Court's Analysis
The High Court undertook a rigorous analysis of Section 35B of the CPC, emphasizing its mandatory character. The court reproduced the statutory language: "payment of such costs... shall be a condition precedent to the further prosecution of... the defence by the defendant." It noted that the Legislature deliberately paired the word "shall" with "condition precedent," leaving no room for interpretation as directory.
"The Legislature has made its intention absolutely clear by using the words 'shall be a condition precedent' that the provision of this section are mandatory in nature and that any non-compliance of these provision would be fatal."
The court distinguished the pendency of an application under Order 6 Rule 15(2) from the obligation to comply with a court order under Section 35B. It held that the two are independent: one concerns discovery, the other concerns procedural compliance. The defendant’s attempt to use the disclosure application as a shield against the consequences of non-payment was deemed an abuse of process.
The court further examined the defendant’s conduct: he had already delayed filing the written statement for over 10 months, received a final opportunity, and then chose to file a dilatory application rather than comply. The court noted that the details sought in the Order 6 Rule 15(2) application were either publicly available or within the defendant’s exclusive knowledge as the deceased’s son.
Regarding the settlement deed, the court observed that the defendant had received Rs. 4,50,000 from the plaintiff on 19.11.2025, deposited it into his own account, and only reversed it on 05.03.2026 after being summoned by the High Court. This conduct was characterized as "an attempt to manipulate the proceedings and gain undue advantage."
The court relied on the Full Bench decision in Anand Parkash v. Bharat Bhushan Rai, which held that courts have no discretion to extend time for payment of costs under Section 35B unless the default arises from circumstances beyond the party’s control. No such circumstances were pleaded or proven.
The Verdict
The revision petition was dismissed. The High Court upheld the trial court’s order dated 02.01.2020 striking off the defendant’s defence and the order dated 24.02.2022 dismissing the Order 6 Rule 15(2) application. The court held that the non-payment of Rs. 1,000 as costs under Section 35B CPC was a fatal breach, warranting the striking off of the defence. The settlement deed was not accepted as binding due to the defendant’s unilateral reversal of payment without court sanction. The parties were directed to appear before the trial court on 06.05.2026, and the trial court was directed to dispose of the suit within six months.
What This Means For Similar Cases
Compliance with Section 35B CPC Is Non-Negotiable
- Practitioners must treat court-ordered costs under Section 35B CPC as absolute conditions precedent, not suggestions.
- Failure to pay costs on the next court date automatically bars further prosecution of the defence, regardless of pending applications.
- Courts are not obligated to remind defaulting parties; the burden of compliance rests solely on the party ordered to pay.
Dilatory Tactics Will Be Penalized
- Applications filed under Order 6 Rule 15(2) or Section 151 CPC cannot be used to circumvent mandatory compliance orders.
- Courts will scrutinize the relevance and bonafides of such applications; frivolous or irrelevant requests will be dismissed and may attract adverse cost orders.
- Repeated delays, even if masked as procedural requests, will be viewed as abuse of process and justify striking off defences.
Settlements Must Be Court-Approved to Be Effective
- Parties cannot unilaterally reverse settlement payments after court proceedings have commenced.
- Any compromise must be formally filed before the trial court and accepted by it to suspend litigation.
- Attempts to use settlement as a tactical tool after court intervention will be disregarded, as seen in this case where the reversal of Rs. 4,50,000 was deemed manipulative.
