Payment of costs imposed under Section 35B of the Code of Civil Procedure for causing delay is a mandatory condition precedent for the further prosecution of a defense; failure to comply justifies the closure of evidence.

Virender Singh, Judge (oral )

1. Notice confined to respondent No. 1. Ms. Jyoti Chauhan, Advocate appears and waives service of notice on behalf of respondent No. 1.

2. Petitioner Kulbhushan Sharma, has filed the present petition, under Article 227 of the Constitution of India, against the order dated 26.2.2026, passed by the Court of learned Senior Civil Judge, Mandi, H.P. (hereinafter referred to as ‘the trial Court’), in Civil Suit No. 95 of 2021, titled as, ‘Canara Bank versus M/s K.B. Trading Co. & others’.

3. By way of order dated 26.2.2026, the learned trial Court has closed the evidence of the petitioner.

4. For the sake of convenience, parties to the lis are hereinafter referred to, in the same fmanner, in which, they were referred to, by the learned trial Court.

5. As per the documents annexed with the petition, plaintiff Canara Bank has filed a suit for recovery of Rs. 1607793/-, alongwith interest @ 10.45% per annum, as calculated upto 31.7.2021. In the said suit, three partners of defendant No. 1, alongwith guarantor, have been impleaded as defendants.

6. As per the zimni orders, annexed with the petition, issues were framed vide order dated 20.5.2023, and vide order dated 23.5.2024, evidence of the plaintiff has been closed. Thereafter, the matter has been listed for DWs on 9.7.2024. On that date, the matter was fixed for 25.9.2024, on the ground that the Presiding Officer was on leave. Thereafter, the defendants have not opted to put appearance, as such, Court notices were issued. Thereafter, the defendants, through their counsel, put appearance on 20.5.2025. On that date, the matter was adjourned for 12.8.2025, for DWs, subject to last opportunity. Despite last opportunity, two more last opportunities were granted to the defendants to lead evidence, and on 23.12.2025, learnefd trial Court has passed the following order:

“No DWs present. Again time prayed for DWs. Exceptional last opportunity is hereby granted for DWs subject to payment of costs of Rs. 1000/- to be deposited in the “Chief Justice Disaster Relief Fund” established by the Hon’ble Hiogh Court of H.P.. Put up on 26.2.2026.”

7. Thereafter, on 26.02.2026, again neither DWs werhe present, nor defendants have deposited the costs, so imposed. Thereafter, the learned trial Court has closed the evidence by holding that sufficient opportunities to lead defence evidence has already been granted.

8. Now, one of the defendants, i.e. Kulbhushan Sharma, is before this Court, by way of this petition. The impugned order has been challenged, mainly on the ground that the plaintiff has taken many opportunities for leading evidence and evidence of the defendants was closed only on 4th occasion. As such, a prayer has been made by learned counsel for defendant Kulbhushan Sharma (petitioner) that one more opportunity be given to the defendants to lead evidence.

9. The prayer, so made in the apfplication, has been opposed by Ms. Jyoti Chauhan, learned vice counsel appearing for respondent No. 1, on the ground that sufficient opportunities have been granted to the defendants to lead evidence.

10. As stated above, the learned trial Court has given four opportunities to the plaintiff to lead evidence and closed the evidence. Thereafter, five effective opportunities were granted to the defendants to lead evidence. But, neither steps had been taken for summoning the DWs, nor, DWs were present. Even, the cost