M.R.SHARMA, J.

1. The facts of the case are given in the elaborate order of reference*prepared by my learned brother P.C. Jain, J. and I need not repeat them all over again. The short question which this Full Bench is called upon to decide is whether the provisions of Section 35-B of the Code of Civil Procedure (hereinafter referred to as the Code) are mandatory, and if so, to what extent. For facts of the case please refer to judgment delivered by Hon ble Prem Chand Jain, J.

2. In spite of the elaborate provisions contained in the Code, the civil cases pending before the trial Courts are not being disposed of as expeditiously as is desirable. The causes for these delays are of course many, which need not be detailed here. It suffices to mention that the matter received the attention of the Law Commission, which made an elaborate inquiry into the matter and submitted its report to the Government of India with the recommendation that the Code of Civil Procedure 1908 be thoroughly overhauled and re-enacted. The said report contained a recommendation that a new section, namely Section 35-B be added to the Code to make provision for costs being awarded to the aggrieved party for the delays in the prosecution of the suit caused by its opponent. The deliberations made by the Commission as a result of the suggestions received by it, make the position self evident. The relevant portion of the report pertaining to this section reads as under :-

"Section 35-B (New) (Costs for delay occasioned by party). 1-D. 83. It often happens that a party, though successful in the event, has been responsible for undue delay in respect of particular stages of litigation. It is but fair that such delay should be taken into account while awarding costs. In order to elicit opinion on the subject, we had put a question in the questionnaire as follows :-

"1. Would you favour the insertion of a provision to the effect that the Court shall, while passing an order for costs, make the party responsible for delay with reference to any step in the litigation, pay the cost proportionate to that delay, whatever may be the ultimate event of the suit."

1-D. 84. This question has led to a sharp difference of opinion. The replies received could be classified into three broad categories namely, (i) those favouring the suggested amendment, (ii) those opposed to it, and (iii) those accepting it in a modified form, e.g. those which would leave the matter to the discretion of the court rather than insert a mandatory provision.

1-D. 85. Opinion is almost equally divided between the first two categories, only a few replies favouring an amendment with a modification. Those who are in favour of the amendment posed in the question, regard it as a desirable one in order to check dilatory tactics. It has been stated that solvent parties often resort to that dilatory tactics to cripple the opposite party, or a party with a bad case tries to delay the matter. It has further been pointed out that a good slice of litigation is aimed at delaying the relief to which the opposite party is entitled. One of the replies adds that the payment of costs of adjournment should be made a condition precedent to the taking of the next step in the litigation i.e. the step for the purpose of which the adjournment has been granted to the party against whom the costs are awarded.

1-D. 86. The replies which are opposed to the suggested provision base their opposition on a variety of grounds; for example, it has been stated that; such a provision would be unworkable and would create confusion, and much time will be spent in assessing who was responsible for a particular delay. It is also stated that since adjournments are granted by a judicial order, it would not be correct to make a mandatory provision of the nature contemplated. One of the replies adds that the court has, even now, a power to award costs where the delay is due to frivolous application or due to a deliberate omission or neglige