DWARKA PRASAD, J.—A sum of Rs. 30/— was awarded as costs to the defendant opposite party on February 10, 1982 as the plaintiff petitioner did not file the list of his witnesses nor his witnesses were present in the court while the case was fixed for recording his evidence on that date. On the next date fixed in the case i.e. February 22, 1982 the plaintiff prayed for further time to produce his evidence and to make payment of costs. The time was allowed with consent of the learned counsel for the defendant. Similarly, time was again allowed to the plaintiff for producing his evidence and for payment of costs on April 24, 1982. The case was then fixed for July 29, 1982 and on this date the plaintiff again asked for an adjournment, but the defendant objected to it on the ground that the earlier costs had not been paid. The plaintiff was prepared to make part payment of the sum of Rs. 20/— but the learned counsel for the defendant was not prepared to accept incomplete payment of the amount of costs. In these circumstances, the trial court closed the evidence of the plaintiff.

2. In this revision petition the learned counsel for the plaintiff-petitioner submits that the plaintiff does not desire to examine any other witness except the plaintiff himself and he is prepared to pay costs of Rs. 30/- which were awarded on Feb. 10, 1982 and any other amount of costs which the court may consider necessary to impose for the adjournment of the case on July 29, 1982. It is submitted by the learned counsel for the petitioner that on July 29, 1982 the plaintiff had only Rs. 20/- with him and as such he prayed merely for a short time for making payment of the remaining part of the amount of costs, but the trial court took a very stringent view of the matter and closed the plaintiffs evidence on that date. Leaned counsel for the defendant-opposite party relied upon the provisions of Section 35-B(l) C.P.C. and also placed reliance upon the full bench decision of the Punjab and Haryana High Court in Anand Prakash V. Bharat Bhusan Rai (1) while supporting the order passed by the trial court.

3. Section 35-(B) (1) of the Code of Civil Procedure runs as under :-

"35 — B(l).— If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit—

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,

the Court may, for reasons to be recorded, make an order requiring such party to pay the other party such costs as would, in the opinion of the Court be, reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, & payment of such costs, on the date next following the date of such orders, shall be a condition precedent to the further prosecution of—

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs;

(b) the defence by the defendant, where the defendant was ordered to pay such costs".

4. In Anand Prakashs case (supra), a Full Bench of the Punjab and Haryana High Court took the view that the word "shall" occurring in Section 35-B (1) renders the provision mandatory and that if the costs are not paid on the date next following the date of the order imposing such costs, the court is bound to disallow the further prosecution of the suit or the defence, as the case may be. However, an exception was made, even by the learned judges constituting a majority in the aforesaid case, namely, if the costs were not paid as a result of circumstances beyond the control of the defaulting party and it was held that then the court would be well within its jurisdiction to exercise the power under section 148 of the Code in favour of the defaulting party, considering than an appropriate case is made out for the exercise of its jurisdiction under the aforesaid provision. The Judges constituting the majority of the Full

Click Here to Read the rest of this document