Law:

Section:

Civil Procedure Code (V of 1908)---O. XVII, Rr. 1, 2 3---Court may grant time and adjourn hearing---Costs of adjournment---Principles governing exercise of discretion, detailed. Application of Rule 1 of Order XVII, C.P.C. is not excluded in the circumstances enumerated in Rule 2 or Rule 3; the language used in all the three Rules for the action to be taken by the Court in the events enumerated therein is permissive, and that is for a good reason. Therefore, a Court resorting to Rule 1 to impose costs in situations enumerated in Rule 2 or Rule 3 instead of limiting itself to the actions expressly stated in the latter two Rules would be acting quite within the four corners of Order XVII. An escalating costs order may compensate the plaintiff to some extent and also avoid the delay due to an appeal or a writ. It may be that on a subsequent date, there are genuine reasons for not being able to progress with the suit. The onus will be on the party claiming the genuine reason. If one were to seek a rubric to capture the substantial variety of tests in the case law, it would be the test of contumacy. But the party claiming a genuine reason on an adjourned date will still remain liable to pay the costs for the previous adjournment. If the contumacy persists beyond the last few cost-based adjournments, the trial Courts actions stipulated in Rules 2 and 3 would be unimpeachable, provided care is taken in choosing the right action. The foremost difference between Rules 2 and 3 lies in the stage the suit has reached. If there isnt sufficient material on record for the Court to render a decision, the Court can move under Rule 2 or pass an order for costs under Rule 1 where an escalating costs order is not passed earlier. If recording of evidence has begun and there is sufficient material on record for the Court to render a decision, then the Court is to proceed under Rule 3. PLD 1969 SC 270 and 2008 SCMR 942 ref. The most-cited principle in appeals and writs that a case should be decided on merits is displaced where a partys own contumacious conduct stands in the way of the application of that principle, and that the Court has available to it the tool of costs for…

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