Honble SAXENA, J. – Heard. Perused the impugned Oder dated 23.7.94 passed by the Additional District Judge N0. 2 Alwar , in civil suit No. 123/89, , whereby he closed the evidence of the plaintiff -petitioner as it had failed to pay the cost for adjournment u/s,35-B CPC. The petitioner bank filed a civil suit against the defemdant for recovery of Rs. 3,10,931/- In the suit, 28/4/94 was fixed for the plaintiffs evidence and an adjournment was sought on behalf of the petitioner for examining other witnesses . Therefore , the case was adjourned to 15/7.94 on a cost of Rs. 100/-. On 15.7.94 the petitioner could not make payment of the cost and an objection was taken on behalf of the non-petitioners under Section 35(B) CPC and the case was adjourned to 21.7.94. On that date the petitioner-Bank produced a pay order of Rs. 100/- towards cost but the non-petitioners refused to accept the same and insisted the lower court not to allow the petitioner to participate in the proceedings. The learned trial court by the impugned order dated 23.7.94 precluded the petitioner from producing its evidence on the ground that it had failed to make payment of the cost on 15.7.94 .Hence this revision petition.

(2) A perusal of the impugned order indicates that the plaintiff petitioner was not delaying the trial of the suit and it was prepared to fulfil the condition of paying the cost on 21.7.94 . It is needless to mention that the Courts are not hand-maids of rules and for technical reasons,miscarriage of justice cannot be allowed .The petitioner-Bank has filed the suit for recovery of Rs. 3,10,931/- . Simply on account of delay in making payment of cost ,the evidence of the petitioner Bank should not have been closed under the garb of provisions of Section 35-B CPC as this is not the legislative intent to debar a party from adducing its evidence in a suit especially when such party is not employing dilatory tactics. In my considered opinion , the impugned order is patently incorrect, illegal and inappropiate and the lower court has acted in exercise of its jurisdiction illegally and with material irregularity. Hence the impugned order cannot be sustained .

(3) In the result , this revision petition is allowed and the impugned order dated 23.7.94 is hereby set aside and in the interests of justice ,it is directed that if the petitioner -Bank pays a cost of Rs. 750/- (seven hundred fifty rupees only ) to the non-petitioners within forty days from today,then one more opportunity be granted to examine its witnesses on the date fixed by the trial court.

Click Here to Read the rest of this document