The main legal point established in the judgment is that the provisions of Section 35-B of the Code of Civil Procedure, 1908, are directory in nature, and the Court has the discretion to extend the time for payment of costs if there are valid reasons beyond the control of the defaulting party.

JUDGMENT

Amol Rattan Singh, J. - By this petition, the petitioners challenge the order of the learned trial Court [Civil Judge (Junior Division), Patiala], dated 06.12.2018 (Annexure P-l), by which the respondent-defendants have been granted one last opportunity to get the first respondent herein, i.e. D.W. 1 Kamlesh Kumar, cross-examined on behalf of the plaintiffs, thereby dismissing the application filed by the petitioners-plaintiffs seeking that the defence of the defendants be struck off.

2. The background of the matter is that on 03.11.2018, the trial Court, noticing that "no defendants' evidence is present", had granted a request for adjournment by counsel for the defendants, with the hearing adjourned to 1.5.11.2018 for defence evidence.

The defendants were also directed to conclude the entire evidence on that date, with it being shown to be a "special last opportunity", subject to payment of costs of Rs. 400/-.

Thereafter, on 15.11.2018 again no witness for the defendants was present and instead an application under Order 14, Rule 5 CPC was filed by them, seeking to frame additional issues, which application was not entertained by that Court, holding that issues had already been framed on 03.12.2015, with issue No. 1 being a comprehensive issue pertaining to entitlement of the plaintiffs to a decree for specific performance in respect of an agreement of sale contended to have been entered into between the parties.'

The relief of possession of the suit property was also held to be an issue to be decided as an ancillary issue thereof and consequently, it was held that no separate issue was required to be framed for that purpose.

3. As regards the question that arises in the present petition, it is to be noticed that vide the order dated 15.11.2018, it was also noticed by the trial Court that costs earlier imposed on 03.11.2018 had not been paid but yet, in the interest of justice, one more opportunity was granted to the defendants to conclude their entire evidence subject to further payment of costs of Rs. 1,000/-, failing which their evidence was to be closed by the Court itself on 21.11.2018.

4. On that date, again an adjournment was sought for the purpose of cross-examination of D.W. 1 Kamlesh Kumar, because counsel for the defendant was not available on that date, with it further noticed by that Court that neither the costs imposed earlier of Rs. 400/-, nor subsequently of Rs. 1,000/-, had been paid; though the contention of the defendants that they were ready to pay the costs was also noticed. (A copy of the order dated 21.11.2018 is annexed as Annexure P-4 collectively).

5. On that date itself counsel for the plaintiffs had filed the aforesaid application seeking that the defence of the defendants be struck off due to nonpayment of costs of Rs. 400/-, with counsel having further stated that he did not wish to accept the costs as were offered to be paid by the defendants' witness on that date.

Even so, one more opportunity was granted for the purpose of cross-examination of the witness and the matter was adjourned to 28.11.2018, as also for consideration of the application.

6. Learned counsel submits that on that date a reply to the application of the petitioners-plaintiffs was filed by the respondents-defendants and the matter adjourned to 06.12.2018, on which date the impugned order has been passed.

While doing so, the judgments cited on behalf of the petitioners-plaintiffs, including one of a Full Bench judgment of this Court in Shri Anand Parkash v. Shri Bharat Bhushan Rai and another 1982 (1) RCR (Rent) 1 , were duly noticed by the trial Court, to the effect that once costs have not been paid, the Court is bound to strike off the defence of the defendants.

7. Even so, the trial court, while rejecting the application for striking off defence, observed as follows:-

"On perusal of zimini orders, it can be seen that D.W. 1 Kamlesh Kumar was examined-in-chief on 10.07.2018. He was partly cross-examined on several da