The provisions of Section 35-B of the CPC are not attracted to subsequent dates once the issue of default in payment of costs is not raised on the crucial date next following the date of the order of payment of costs.

S.S.SANDHAWALIA, J.

1. Whether the party defaulting in the payment of costs on the date fixed therefor (whereon the question is not at all raised) can on the subsequent date or dates be barred from further prosecuting the suit or its defence, as the case may be, - is the significant question which falls for adjudication in this reference, as a corollary to the ratio of the Full Bench in Anand Parkash V/s. Bharat Bhushan Rai, AIR 1981 Punj and Har 269, in the context of Section 35-B of the Civil P.C.

2. Prem Sagar petitioner had preferred an application in the trial Court for obtaining a succession certificate regarding the assets of one Sant Ram, deceased. Therein, 11th of Sept., 1981 was fixed for filing of a written reply by the respondents. This having not been done, a prayer for adjournment for filing the written reply was granted by the Court subject to the payment of costs of Rs. 20.00 on the next following date the 25th of Sept., 1981. On the said date, reply to the application was allowed to be filed and the question of the payment of costs was not even remotely raised by either side and the case was adjourned to the 10th of Oct., 1981. On the said date, the petitioner filed an application purporting to be under Section 35-B of the Civil P.C. that the respondents be barred from prosecuting their defence. Notice of the said application was issued to the respondents and the case was adjourned to the 23rd of Oct., 1981. In the reply to the aforesaid application, the respondents pleaded that due to some misunderstanding, they were not even aware about the order of payment of costs and were always ready and willing to pay the same and further filed an application praying for extension of the period for payment of the costs. Further the costs were tendered on that very day but were not accepted by the other party. By order dated the 9th of Nov., 1982, the trial Court rejected the application under Sec.35-B of the Civil P.C. holding that the respondents had never willfully refused the payment of costs.

3. The petitioner then preferred the present civil revision which originally came up before R.N. Mittal, J. Noticing the significance of the ancillary question arising in the wake of the Full Bench judgment in Anand Parkash s case (AIR 1981 Punj and Har 269) (supra), and also some conflict of judicial opinion thereon the matter was referred for consideration by a larger Bench, and that is how it is before us.

4. Inevitably one must first turn to the Full Bench judgment in Anand Parkash s case (supra). The threshold question is whether its true ratio either expressly or by direct analogy covers the precise question before us. To my mind it seems manifest that the question before the Full Bench in Anand Parkash s case was plainly distinct and different. As is evident even from the opening formulation of the minority view of Sharma, J., the issue therein was whether the provisions of Sec.35-B of the Code were mandatory or directory and he in terms answered to the effect that the provisions were directory in nature. Similarly, Jain, J., who had prepared the majority judgment (with which I concurred) had precisely framed the question before the Full Bench in the following terms :-

"On the respective contention of the learned counsel for the parties the question that needs determination is whether it is mandatory on the Court to disallow prosecution of the suit or the defence as the case may be, any further, in the event of the party failing to pay the costs on the date next following the date of the order imposing costs. The answer to this question was rendered in the following terms by the majority :-

"In accordance with the majority decision it is held that in the event of the party failing to pay the costs on the date next following the date of the order imposing costs, it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be and that no other extraneous consideration would w