Section 35-B of the CPC is directory and not mandatory, and the court has the discretion to make appropriate directions considering the facts and interests of justice.

B. N. MISRA, J.

( 1 ) DEFENDANT No. 1 in a suit for declaration of title and permanent injunction has carried this application under Section 115 of the Civil P. C. assailing the order of the Second Munsif of Cut-tack dated third October, 1980.

( 2 ) THE trial of the suit opened on 17-8-1981 when examination of witnesses on the plaintiff's side began. On 14-9-1981, plaintiff applied to the Court for reissue of summons to the Settlement Officer for production of certain documents. Summons was ordered to be issued at plaintiff's risk and the suit was adjourned to 15-9-1981. On 15-9-1981 as the summons had not returned after service, it was directed to be reissued by adiourning the suit to the next date i. e. 16-9-1981 on terms of costs and plaintiff was directed to pay adjournment cost of Rs. 15/ -. On 16-9-1981 the witnesses did not appear. The trial Court closed the evidence on the plaintiff's side and witnesses of the defendant were examined. The trial continued and defendant's witnesses were examined on the 17th and 18th of September, 1981. On 19-9-1981 defendant applied for time and the suit was adjourned to 21-9-1981 when further witnesses on the defendant's side were examined. Trial continued day after day between 21st and 25th of September, 1981. On 29-9-1981 the evidence was closed. On 30th of September, 1981 plaintiff applied for an opportunity of leading rebuttal evidence and the learned trial Judge allowed an opportunity on terms of costs. On 30th of September, 1981 the Court directed that evidences on both sides be taken as closed. On that day an application was made relying upon Section 35-B of the Code of Civil Procedure (hereinafter referred to as the Code) for dismissal of the suit on the ground that adjournment cost of Rs. 15/ as directed on 15-9-1981 had not been paid by the plaintiff to the defendant. The relevant portion of the order of that day ran thus :-

"the Advocate for the defendant filed a petition under Section 35-B, C. P. C. with a prayer to dismiss the suit on the ground that costs awarded previously unpaid. Copy of the petition served upon the other side. The Advocate for the plaintiff filed a memo stating that costs although offered was not received by the defendant's side. Copy not served as (it is) stated that the defendant's advocate refused to receive the same and it is attached. . . . . . . . . "

On 3-10-1981 the impugned order was passed. The whole of it is extracted for convenience:-

"the plaintiff filed objection to the petition of advocate for the defendants along with treasury chalan for deposit of cost. Perused the petition and its objection. Of course, the cost awarded against plaintiff has not been paid to the defendants so far. But it is alleged by the plaintiff's advocate that the cost offered was not accepted by the advocate for the defendants and more so the defendants have participated in the further hearing of the suit without objecting for payment of cost till 30-9-81. It is seen that the evidence of both the sides have already been closed. The suit is pending at the stage of hearing arguments. Considering the above fact and that the allegation of the plaintiff that cost offered was not accepted, I feel in the interest of justice to reject the petition and to post the suit to 20-10-81 for hearing arguments. Let the chalan be passed for the like amount. "

By the Amending Act of 1976, Section 35-B of the Code was brought into the statute book. It provides:--

"35-B Costs for causing delay:- (1) 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 to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the othe