The court should not invoke the provisions of Section 35-B of the CPC to dismiss a suit without a finding that the plaintiff is causing delay in the disposal of the suit and should consider the evidence already produced before dismissing the suit.

M.L.Singhal, J.

1. Vide order dated 28.5.1982 plaintiffs suit was dismissed by the Subordinate Judge, Ist Class, Karnal in view of the provisions of Section 35-B of the Code of Civil Procedure while allowing respondent-defendants application filed under Section 35-B read with Section 148 of the Code of Civil Procedure seeking dismissal of the suit on account of non-payment of adjournment costs. It was a suit filed by Smt. Devi Bai against Gurbachan Singh in forma pauperis for the recovery of Rs, 8400/- on the basis of pronote and receipt. For 17.4.1982. case was posted for statement of Hand-writing and Finger Print Expert in evidence of the plaintiff. On 17.4.1982 plaintiffs evidence was not present. Hand-writing and Finger Print Expert could not be served for 17.4.1982. Adjournment was sought by the plaintiff on the under taking that he be given one. adjournment of a short duration and on the adjourned date, he will examine the Hand-writing and Finger Print Expert on his own responsibility and in case, he was not able to examine the Hand-writing and Finger Print Expert, his evidence be deemed as closed.

2. Subordinate Judge adjourned the case for evidence on payment of Rs.30/- as costs for 27.4.1982. On 27.4.1982 no evidence of the plaintiff was present nor did he pay costs of adjournment granted in him on 17.4.1982. Plaintiffs evidence as closed. On the following day i.e. 28.4.1982 defendant moved application saying that since the plaintiff had failed to pay the costs of adjournment granted to him on 17.4.1982 which was to be paid on 27.4.1982, plaintiffs suit be dismissed under Section 35-B of the Code of Civil Procedure as the adjournment had been granted to the plaintiff on 17.4.1982 for producing his evidence conditionally on payment of costs and payment of costs was a condition precedent to the further adjournment of the case, the grant of which was in the discretion of the court.

3. This application was opposed by the plaintiff urging that the counsel for the plaintiff had assured the counsel for the defendant that costs would be paid to him after 11.00 AM as plaintiff was to withdraw the amount from the bank and counsel for the defendant had accepted this request of the plaintiffs counsel and it was only then the case was fixed for evidence in rebuttal by the defendant. It was further alleged that despite effort, plaintiff could not trace the counsel for the defendant for paying them the amount of costs and when on 22.5.1982 i.e. the date fixed For the rebuttal evidence of the defendant, counsel for the plaintiff offered Rs.30/- to the counsel for the defendant, he refused to accept the payment of costs.

4. Subordinate Judge, Ist Class, Karnal allowed this application and in consequence dismissed plaintiffs suit in view of provisions of Section 35-B of the Code of Civil Procedure.

5. I have heard the learned counsel for the parties.

6. Authority Anand Parkash v. Bharat Bhushan Rai and Anr.) A.I.R. 1981 Punjab and Haryana 269 relied upon by the trial Court laid down the following principle:-

"In the event of party failing to pay the costs on the date fixed following the date of the order imposing costs, it is mandatory on the Court to disallow the persecution of the, suit or the defence as the case may be, No other extraneous consideration would weigh with the Court in exercising its jurisdiction against the delinquent party. However, in case, where costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power under Section 148 of the Code in favour of the defaulting party, if a strong case is made out.

7. In this case the provisions of Section 35-B of the Code of Civil Procedure could not have been invoked for the dismissal of the suit of the plaintiff.

" 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 t