161 October 17 2025

FROM ADJOURNMENTS TO ACCOUNTABILITY: HOW FAILURE TO PAY COSTS UNDER CPC 35B CAN CLOSE YOUR CASE

"The crux of the case is that the petitioner repeatedly defaulted in court appearances and failed to pay the cost imposed under Section 35B of the Civil Procedure Code (CPC), despite multiple opportunities. Due to this non-payment and continued delays, the trial court closed his right to cross-examine the plaintiff and lead evidence. The High Court upheld this decision, holding that failure to pay costs bars further participation in proceedings and warning that procedural leniency cannot be misused to delay justice."

FACT OF THE CASE
In this civil revision petition before the High Court of Delhi, the petitioner, who was the defendant in the original suit for recovery of a loan amount, challenged an order dated 8 September 2025 passed by the learned trial court. The said order had dismissed the petitioner’s application filed under Order XIII Rule 17 of the Code of Civil Procedure (CPC), which the trial court had treated as one under Order XVIII Rule 17 read with Section 151 CPC. Through this application, the petitioner sought permission to recall the plaintiff, who had been examined as PW1, for further cross-examination. The petitioner’s grievance arose from the fact that his right to cross-examine the plaintiff and to lead evidence had been closed due to his repeated non-appearance and failure to pay costs imposed by the court. The petitioner claimed that his inability to attend court on certain dates was due to genuine and unavoidable reasons, including an accident and a lawyers’ strike. The respondent, however, resisted this contention, asserting that the petitioner had deliberately prolonged the proceedings by seeking repeated adjournments and had been given more than enough opportunities to present his case.

ISSUE BEFORE THE COURT
The main issue before the High Court was whether the trial court had acted correctly in dismissing the petitioner’s application to recall the plaintiff for cross-examination and in closing the petitioner’s right to lead evidence, particularly in light of his failure to pay the costs imposed under Section 35B CPC and his repeated non-appearance during the proceedings. The question was whether such procedural defaults justified the strict action taken by the trial court or whether a further opportunity should have been granted in the interest of justice.

EXPLANATION OF COMPLEX TERMS
Order XIII Rule 17 CPC empowers the court to recall and examine any witness who has already given evidence if the court deems it necessary for a just decision. Order XVIII Rule 17 CPC similarly allows the court to recall witnesses for clarification of evidence. Section 151 CPC preserves the inherent powers of the court to make such orders as may be necessary for the ends of justice. Section 35B CPC, however, imposes a penalty on litigants who fail to comply with court orders regarding costs—if such costs are not paid, the defaulting party may be barred from further participation in the case. The term “proxy counsel” refers to a lawyer who appears in court on behalf of another advocate, usually to seek an adjournment. “Cross-examination” refers to the process by which the opposing party questions a witness to test the accuracy and reliability of his or her testimony.

PETITIONER’S ARGUMENTS
The petitioner argued that his absence from court on various hearing dates was unintentional and caused by unavoidable circumstances. He submitted that on one occasion, he had met with an accident, and on another, the absence was due to a strike by lawyers. He further claimed that on a subsequent date, his proxy counsel appeared before the court and sought a short pass over, but the trial court allegedly refused the request and proceeded to close his right to cross-examine the plaintiff. The petitioner asserted that his case on the merits was strong and that a failure to grant another opportunity would cause irreparable injustice. According to him, procedural rules are meant to advance the cause of justice, not to defeat it, and therefore, the court should have adopted a lenient approach.

RESPONDENT’S ARGUMENTS
The respondent, on the other hand, vehemently opposed the petition, arguing that the petitioner had continuously abused the process of law by seeking repeated adjournments on frivolous grounds. It was contended that the petitioner had been granted more than ten adjournments throughout the proceedings and that even after being directed to pay costs on a previous date in 2024, he had failed to do so for more than a year. The respondent maintained that the petitioner’s conduct reflected a deliberate attempt to delay the disposal of the case and to frustrate the legitimate claim of the plaintiff. Therefore, the respondent urged that the trial court’s order closing the petitioner’s right to lead evidence was entirely justified and should be upheld by the High Court.

RELEVANT CASE LAW AND LEGAL DISCUSSION
The High Court referred to the landmark judgment of Manohar Singh v. D.S. Sharma (2010) 1 SCC 53, where the Supreme Court held that under Section 35B CPC, a party’s failure to pay costs as directed by the court results in the consequence that the defaulting party is prohibited from further participation in the proceedings. The Court also observed that judicial records are considered sacrosanct, meaning that if any party believes that the record of proceedings does not accurately reflect what occurred in court, it must immediately seek rectification from the same court. If such a step is not taken, the party cannot later challenge the accuracy of the court’s order sheet. The Court also emphasized that a strike by lawyers can never be treated as a legitimate reason for absence since the courts themselves do not go on strike and the justice delivery process must continue uninterrupted. The decision reinforced the principle that while courts are inclined to promote justice through flexibility, they must also ensure that procedural discipline is maintained to prevent abuse of process.

COURT’S OBSERVATIONS
Justice [Name Withheld] of the Delhi High Court observed that the record of proceedings clearly established the petitioner’s repeated defaults, both in terms of appearance and in payment of costs. The Court noted that the cost imposed by the trial court on 13 September 2024 had not been paid even after the lapse of one year and that the petitioner had not provided any reasonable explanation for this failure. Furthermore, the court’s order sheets showed that on the date when the petitioner claimed his proxy counsel appeared, no such appearance was recorded. The judge reaffirmed that court records carry a presumption of correctness unless immediately challenged. The High Court found that the petitioner’s repeated absences, his failure to pay costs, and his non-filing of the evidence affidavit all pointed to a deliberate attempt to delay the proceedings. It was therefore concluded that the trial court’s orders were proper, justified, and in accordance with settled principles of law. The Court further observed that it was time to put an end to the perception that civil suits can be dragged endlessly through misuse of procedural leniency.

EXPLAINING THE CASE WITH A COLLEGE STUDENT EXAMPLE
To put this situation in relatable terms, imagine a group project in college where one member keeps skipping meetings, claiming issues like “the Wi-Fi was down,” or “the app glitched,” or “my laptop crashed.” The rest of the team continues to make allowances and gives extra chances, but that member never actually contributes. Eventually, the professor, tired of excuses, refuses to let that student submit their work at the last minute. The student might say it’s unfair, but in truth, the professor’s patience had already been exhausted. Similarly, in this case, the court had been patient for too long. The petitioner missed multiple hearings, ignored costs, and failed to take the process seriously. Just like the teacher finally saying “no more extensions,” the court decided that justice required closing his opportunity to delay further.

COURT DIRECTIONS / JUDGMENT
After carefully reviewing the record, the High Court found no error or irregularity in the trial court’s order. It held that the trial court was fully justified in dismissing the petitioner’s application under Order XVIII Rule 17 CPC and in closing his right to cross-examine the plaintiff and lead evidence. The Court concluded that the petitioner’s conduct amounted to willful neglect and misuse of procedural provisions. Upholding the trial court’s order, the High Court dismissed the petition and reiterated that the consequences under Section 35B CPC must follow when a party fails to comply with directions regarding costs. The judgment closed with a strong message that courts must no longer tolerate procedural abuse and that civil litigation cannot be allowed to run indefinitely due to one party’s intentional delays.
___________________________
DATE OF DECISION: 15.10.2025
CASE NUMBER:CM(M) 1998/2025

Author

avatar
Adv. ALOK KUMAR
Advocate Serving Delhi NCR
Delhi High Court & District Courts
LL.B.▪︎Faculty of Law▪︎Delhi University


Comments are not allowed on this article.