Non-Payment of Costs Carries Consequences Under Section 35B CPC - Right to Cross-Examine and Lead Evidence Rightly Closed: Delhi High Court

“The judicial record is sacrosanct. If proceedings are not correctly recorded in the ordersheet, the party concerned must immediately move the same court for rectification, failing which the party cannot be allowed later to challenge the correctness of the order sheet.” – Delhi High Court

With these unequivocal words, the Delhi High Court dismissed a petition seeking to recall the plaintiff for cross-examination, after repeated defaults, unpaid costs, and a demonstrated pattern of delay by the defendant. Justice Girish Kathpalia, sitting in civil original jurisdiction, upheld the Trial Court’s refusal to recall the witness and declined to interfere with its procedural decisions, observing that there was neither legal infirmity nor perversity in its reasoning.

The case involved an application under Order XIII Rule 17 CPC, which the Trial Court treated as one under Order XVIII Rule 17 read with Section 151 CPC, and dismissed after the defendant failed to appear, did not pay earlier imposed costs under Section 35B, and claimed discrepancies in the court record without filing for rectification.

The High Court noted that "the defaults were not accidental, but part of a deliberate and contumacious strategy to frustrate the trial process."

“A Party That Defies Costs and Courts Cannot Expect Relief”: High Court Enforces Consequences of Section 35B CPC

Rejecting the defendant’s attempt to invoke sympathy on grounds of merit in the main case, the Court cited the Supreme Court’s ruling in Manohar Singh v. D.S. Sharma, (2010) 1 SCC 53, and stressed that non-payment of judicially imposed costs carries legal consequences which bar further participation in proceedings.

Justice Kathpalia observed:

“On 15.05.2025, even the cost dated 13.09.2024 remained not paid despite the lapse of eight months. Closure of the right to cross-examine the plaintiff was completely justified, not only for non-appearance but also due to the failure to pay cost.”

The Court further noted that the cost had still not been paid as of the date of the judgment, and there was “not even a whisper” of an explanation from the petitioner, underscoring the seriousness of the default.

“Civil Suits Are Not Endless Tunnels—The Court Must Break the Cycle of Delay”

In a strong rebuke to the culture of adjournment and procedural abuse, the Court noted that the petitioner had taken 11 adjournments with no genuine justification and had made no effort to comply with basic procedural requirements.

The Court held:

“The conspectus amply shows the blatant and deliberate design on the part of the petitioner to continue to protract the trial court proceedings, with the obvious aim to frustrate the plaintiff into giving up the lis.”

Reinforcing the need for judicial firmness, Justice Kathpalia declared:

“It is high time that paradigm be changed by courts and an impression across the society be dispelled that civil suits can be allowed to run for decades.”

“Strike by Lawyers Is Not a Legal Excuse—Courts Are Never on Strike”

The Court categorically rejected the explanation that one of the defaults occurred because of a lawyers’ strike on 21.02.2025, reiterating well-established law that lawyer boycotts cannot be used as an excuse for party defaults.

Justice Kathpalia was unambiguous:

“It has been repeatedly held by the Supreme Court and all High Courts across the country that strike by lawyers is not a justified ground for defaults. The courts are never on strike.”

The default, compounded by earlier failures, further justified the Trial Court’s decision to close the opportunity for evidence and deny the belated application to recall the plaintiff.

“Delay, Disobedience, and Procedural Abuse Cannot Be Masked as a Plea for Fair Hearing”

The defendant claimed that he had a good case on merits and deserved one more opportunity to cross-examine the plaintiff. But the Court found no basis to override the Trial Court’s procedural closure, which had been arrived at after a series of opportunities given and repeatedly misused.

Justice Kathpalia reminded that Article 227 jurisdiction cannot be invoked to rewrite discretionary orders of the Trial Court unless there is a gross miscarriage of justice.

“I find absolutely no infirmity in the impugned order, so the same is upheld and the petition is dismissed,” the Court held, firmly refusing to indulge procedural abuse disguised as procedural rights.

Conclusion: No Perversity, No Interference, No More Indulgence

In conclusion, the High Court dismissed both the main petition and the accompanying application, while recording its strong disapproval of delay tactics. The defendant’s litigation conduct was described as deliberate, dilatory, and disruptive, with the Court observing:

“Where a party not just defaults in appearing but also contumaciously defies clearing the cost, consequences stipulated under Section 35B of CPC, reiterated by the Supreme Court, must follow.”

This ruling sends a clear message to civil litigants: delay cannot be weaponised, and judicial processes cannot be held hostage to tactics of attrition.

Date of Decision: 15 October 2025