Sanjay Kishan Kaul, J.— (Oral)

1. The appellant as defendant in the suit failed to file the written statement within the time stipulated or extended whereafter the written statement was sought to be brought on record by filing an application under Order 8 Rule 1 of CPC after delay of 209 days beyond a period of 90 days. The learned single Judge, despite the extraordinary delay, showed indulgence by permitting the written statement to be taken on record, but subject to payment of costs of Rs.1,00,000/- to the respondent and it is only on the imposition of costs that the appellant has filed the present appeal.

2. In order to appreciate as to what is the basis of filing such an application, averments made in the application have to be seen. The only averments made in the application is that the appellant was searching for some scientific literature to establish its case and for this reason there was delay in filing of the written statement. In the impugned order, however, learned counsel for the appellant apparently tried to improve the case of the appellant by canvassing that since the matter at the interlocutory stage went right up to the Supreme Court, focus of the appellant was lost in that process and the written statement was not filed. Clearly, the second aspect cannot be taken note of as it does not form a part of the averments in the application.

3. In our view, in fact, the so-called search for scientific matter was no ground to have extended the time period for filing of the written statement. However, we are not faced with an appeal from the respondent which would require us to pass an order in that direction and we are only required to examine whether the imposition of costs was exorbitant or whether the costs ought to have been imposed in the given facts and circumstances of the case.

4. Learned counsel for the appellant firstly canvassed that there were no reasons given in the impugned order for such costs being imposed. The second limb of his submission is that the standard of costs to be imposed must be laid down and it cannot be so high. The last limb of the submission is that the provisions of Order 8 Rule 1 CPC have been held to be directory and not mandatory.

5. Dealing with the last aspect first, no doubt the Supreme Court has held that the time period can be extended for just and reasonable cause but it is not to be done in a routine manner. The very legislative intent of having time-bound schedules for completion of trials gets lost if, in routine, the time period is extended.

6. As far as the reasons for imposition of costs are concerned, the learned single Judge does not find the case of the appellant completely justified, but has, in fact, shown indulgence while noticing the pleas and granting time to the appellant to bring the written statement on record in fact even beyond the pleadings in the application.

7. Learned counsel for the appellant in his elaborate submissions has sought to take us through the provisions of Sections 35, 35A, 35B of CPC to contend that at best the present case would fall within the purview of Section 35B of CPC. He further submits that as per sub-section (2) of Section 35B, if costs are not paid, they are to be included as costs awarded under the decree and the payment of the costs could not have been conditional for purposes of bringing the written statement on record.

8. We reject all these arguments. A bare reading of Section 35B (1) of the said Act shows that for the reasons to be recorded, the costs “shall be a condition precedent to the further prosecution”. Thus, conditional costs are very much within the domain of Section 35B (1).

9. The aspect of costs has agitated the minds of various judicial forums. The reason is that the matters keep on getting delayed without adequately compensating a party for the expenses incurred. In this behalf, learned counsel for the appellant has referred to para 38 of the judgment in Salem Bar Association, Tamil Nadu v. Union of India;