Dr. B.N. Misra, J.
1. Defendant No. 1 in a suit for declaration of title and permanent injunction has carried this application under Section 115 of the Civil P. C. assailing the order of the Second Munsif of Cut-tack dated third October, 1980.
2. The trial of the suit opened on 17-8-1981 when examination of witnesses on the plaintiff's side began. On 14-9-1981, plaintiff applied to the Court for re-issue of summons to the Settlement Officer for production of certain documents. Summons was ordered to be issued at plaintiff's risk and the suit was adjourned to 15-9-1981. On 15-9-1981 as the summons had not returned after service, it was directed to be reissued by adiourning the suit to the next date i. e. 16-9-1981 on terms of costs and plaintiff was directed to pay adjournment cost of Rs. 15/-. On 16-9-1981 the witnesses did not appear. The trial Court closed the evidence on the plaintiff's side and witnesses of the defendant were examined. The trial continued and defendant's witnesses were examined on the 17th and 18th of September, 1981. On 19-9-1981 defendant applied for time and the suit was adjourned to 21-9-1981 when further witnesses on the defendant's side were examined. Trial continued day after day between 21st and 25th of September, 1981. On 29-9-1981 the evidence was closed. On 30th of September, 1981 plaintiff applied for an opportunity of leading rebuttal evidence and the learned trial Judge allowed an opportunity on terms of costs. On 30th of September, 1981 the Court directed thatevidences on both sides be taken as closed. On that day an application was made relying upon Section 35-B of the Code of Civil Procedure (hereinafter referred to as the Code) for dismissal of the suit on the ground that adjournment cost of Rs. 15/- as directed on 15-9-1981 had not been paid by the plaintiff to the defendant. The relevant portion of the order of that day ran thus :--
'The Advocate for the defendant filed a petition under Section 35-B, C. P. C. with a prayer to dismiss the suit on the ground that costs awarded previously unpaid. Copy of the petition served upon the other side. The Advocate for the plaintiff filed a memo stating that costs although offered was not received by the defendant's side. Copy not served as (it is) stated that the defendant's advocate refused to receive the same and it is attached.........'
On 3-10-1981 the impugned order was passed. The whole of it is extracted for convenience:--
'The plaintiff filed objection to the petition of advocate for the defendants along with treasury chalan for deposit of cost. Perused the petition and its objection. Of course, the cost awarded against plaintiff has not been paid to the defendants so far. But it is alleged by the plaintiff's advocate that the cost offered was not accepted by the advocate for the defendants and more so the defendants have participated in the further hearing of the suit without objecting for payment of cost till 30-9-81. It is seen that the evidence of both the sides have already been closed. The suit is pending at the stage of hearing arguments. Considering the above fact and that the allegation of the plaintiff that cost offered was not accepted, I feel in the interest of justice to reject the petition and to post the suit to 20-10-81 for hearing arguments. Let the chalan be passed for the like amount.'
By the Amending Act of 1976, Section 35-B of the Code was brought into the statute book. It provides:--
'35-B 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 the step which he was required by or under this Code to take On that date, or
(b) obtains an adjournment for taking such step or for producing evidence or on any other ground.
the Court may for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date of such order, shall be a condition precedent to the further prosecution of --
(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs.
(b) the defence by the defendant, where the defendant was ordered to paysuch costs.
Reliance has, been placed by Mr. Mohapatra on the aforesaid provision in support of his contention that the plaintiff was not entitled to further prosecute the suit and the provision being mandatory, the trial Court was obliged to dismiss the suit. Support for this contention is claimed from a Full Bench decision of the Punjab High Court in the case of Anand Parkash v. Bharat Bhushan Rai, (AIR 1981 Punj and Har 269). Counsel for the other side relies on a single Judge decision of the Punjab High Court in Manak Chand v Suresh Chand Jain (AIR 1979 Punj and Har 229) and another Division Bench decision of that High Court in the case of Manjit Singh v. State Bank of India (AIR 1980 Punj and Har 317) where referring to Section 35-B of the Code, the learned Judges have taken the view that the provision is directory or at any rate, the Court looking into the facts of the case and keeping the interests of justice in view, could make appropriate directions. It has also been contended by counsel for the plaintiff opposite party that the jurisdiction of this Court under Section 115 of the Code is discretionary and if the impugned order of the trial Court has advanced the cause of iustice, no interference should be made. For such a proposition reliance is placed on two single Judge decisions of this Court being Dinamani Dass v. Bimbadhar Padhan (AIR 1969 Orissa 28) and Bhimaraj Onkarmal Firm v. Satyanarayan Satpathy ( (1970) 36 Cut LT 1152).
3. Section 35-B of the Code is admittedly a procedural provision. Undoubtedly, it was introduced into the statute with a view to controlling theconduct of parties in litigations. As was pointed out by the Supreme Court in the case of State of Guiarat v. Ramprakash P. Puri ( (1970) 2 SCR 875) : (AIR 1969 NSC 184):
'Procedure has been described to be a hand-maid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause.........'
Lord Buckmaster had once stated the law thus ;--
'All rules of Court are nothing but provisions intended to secure proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose.'
A Division Bench of this Court in the case of Maguni Dei v. Gouranga Sahu (AIR 1978 Orissa 228) had occasion to deal with the provision in Order 18, Rule 3-A of the Code which also was introduced into the statute by the same Amending Act. In the said Bench decision, a statement of Lord Penzance in (1879) 4 AC 504 (Henry J. B. Kendall v. Peter Hamilton) was quoted which runs thus:--
'Procedure is but the machinery of the law after all -- the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights, and is thus made to govern where it ought to subserve.'
This Court in the said decision referred to several authorities and ultimately came to hold that the provision in Order 18, Rule 3-A of the Code was directory and not mandatory. While overruling a single Judge decision, this Court ultimately observed:--
'Rule 3-A, therefore, introduced the rule to be applied to ordinary cases and the hardship arising from special features of a given case was left to be dealt with in exercise of discretionary power of the Court. What the rule intended to emphasise upon was that ordinarily the party who wants to examine himself in support of his cause must come to the witness box as the first witness on his side and discretion is vested in the Court to make an exception. If the Court exercises the discretion in favour of the defaulting party it has to record reasonstherefor. What was considered to be an obnoxious practice by Dua, J. in the Punjab case (AIR 1962 Punj 180) Or by the Law Commission in its 54th Report, was intended to be avoided by requiring the party to examine himself first and leaving it to the Court to regulate the situation by sound exericse of iudicial discretion. There is no justification to hold that the Court loses jurisdiction to deal with the application of the defaulting party once it has not been made before evidence on his side began.' I am inclined to take the view that the cause of justice is paramount and a procedural law cannot be raised to the pedestal of being such a mandatory provision as would take away the Court's right in a given case to exercise its discretion in the interests of justice.
Out of the three learned Judges who constituted the Full Bench in the Punjab High Court in Anand Parkash's case (AIR 1981 Punj and Har 269) one learned Judge has taken a different view and I am of the view that the learned single Judge in his dissenting view has come to the correct conclusion. That is in keeping with the two earlier decisions of the same High Court being AIR 1979 Punj and Har 229 and AIR 1980 Punj and Har 317. I may refer to one more single Judge decision of the Punjab High Court not referred to at the Bar and that is the case of Simpy Films No. 12, Jullundur v. Rajdhani Films (P) Ltd. (AIR 1981 Punj and Har 24). These decisions in my view had reached the correct conclusion. The reasoning given by a Division Bench of this Court which I have referred to above, in my opinion, indicates the true test for finding out whether a procedural provision is mandatory in the true sense so as to take away the discretion of the Court. The language in which Section 35-B has been expressed, when applied with the test indicated by the Division Bench of this Court in the reported decision must also be considered as directory.
4. I cannot lose sight of the fact that the defendant participated in the proceeding and all the witnesses examined on his side were brought to the court on several dates after the default had occurred. The plaintiff cross-examined the witnesses and the suit has already reached the stage of argument. It was only at that stage the defendant put in an application for dismissal of the suit. The defendant's conduct has been rightly relied upon by the trial Court for estopping him from raising the plea at such a belated stage.
5. In this background, it is appropriate to take note of a well-known situation relating to jurisdiction of the High Court under Section 115 of the Code and the two decisions of this Court being AIR 1969 Orissa 28 and (1970) 36 Cut LT 1152 correctly represent the judicial view about such jurisdiction. I am inclined to think that this is a fit case where I should refuse to exercise the discretionary jurisdiction of the Court. The order of the learned trial Judge is in furtherance of the interests of justice and, therefore, there should be no interference. The revision application is dismissed. Parties are directed to bear their own costs here.