Non-compliance with mandatory provisions regarding payment of costs under Section 35B can result in penal consequences, and the intention of the party seeking adjournment is irrelevant.

G.S. Sandhawalia, J.

The present revision petition filed by the petitioner-tenant is directed against the order dated 18.01.2017 passed by the Rent Controller, Ferozepur whereby the application for recalling of order dated 17.11.2016 has been declined. The reasoning given by the Rent Controller was that on the said date one witness namely Raj Kumar AW-3 was present in the Court for cross-examination but the counsel had failed to cross-examine him and cross-examined the other witness namely, Vinod Kumar AW-2. The case has been called in the two sessions, i.e. Morning session and afternoon session. It was also noticed that costs were imposed upon the respondents which had not been paid till that date. Resultantly, the cross-examination of the Raj Kumar was treated as NIL. It is further noticed that another witness namely Veerpal Soi AW-4 had come and has been examined-in-chief in the affirmative by tendering evidence and opportunity was given for cross-examining him on the next date, i.e. 14.12.2016. It is also to be noticed that no request was made before the Court and counsel chose not to appear to cross-examine the witness Raj Kumar who had been examined-in-chief on 18.05.2015. Resultantly, the application was dismissed.

2. Counsel for the petitioner has vehemently submitted that the party cannot be put to fault as such on account of the lapse of the counsel who was not present and that the petitioner is ready to pay the cost. The said argument cannot be accepted keeping in view the judgment of the Full Bench in Anand Parkash v. Bharat Bhushan Rai and another, AIR 1981 P&H 269. It has been held that once costs are imposed, it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be.

It was contended by Mr. Goel, learned counsel for the respondent, that though word 'shall' has been used in the Section but by user of that word the power of the Court for granting more time for paying the costs is not taken away. I am afraid, I am, unable to agree with the contention of the learned counsel for the contention of the learned counsel for the respondent. There might have been some merit in the contention of Mr. Goel if the word 'shall' had been used alone as in that event the judgment cited for the proposition that mere use of word 'shall' may not make a statute mandatory, would have been of some relevance. But in the instant case, a bare scrutiny of the provisions of Section 35B would show that the Legislature had made its intention absolutely clear and beyond the pale of any doubt that the provision are mandatory in nature and any non-compliance with the same would result in penal consequences as envisaged therein. When the provision of Section 35B are analysed we find that the Legislature was not satisfied by using the word 'shall' only and this word shall' in the Section is qualified by the words 'condition precedent'. Where a statute declares that doing of a particular thing shall be a condition precedent, then obviously the intention is to make it a peremptory mandate. A condition precedent is a condition which must be performed, if the Legislature had not intended to make the provisions of the Section mandatory, then it was not at all necessary for the Legislature to have qualified the word 'shall' by using words 'condition precedent'. The Legislature has made its intention absolutely clear by using the words 'shall be a condition precedent' that the provision of this section are mandatory in nature and that any non-compliance of these provision would be fatal. To me the words 'condition precedent' qualifying the word ' shall' appear to be the clincher for interpreting the provisions of Section 35B are mandatory. As has been observed earlier the costs are ordered to be paid to compensate the other party who for no fault of his has to undergo inconvenience and incur expenses. If an adjournment is sought and the same is grated on payment of costs, then on the next date of hearin