M.C. Jain, J.
1. This revision is directed against the order dated Jan. 15, 1982,passed by the District Judge, Chure, whereby he allowed the plaintiff's application under Section 35B(1). C.P.C., and it was further ordered that the defendant shall not be allowed to the further prosecution of its defence.
2. The facts, giving rise to the present revision, may briefly be noticed.
3. The plaintiff-non-petitioner Ram Niwas instituted a suit against the Union of India through General Manager, Northern Railway, for the recovery of a sum of Rs. 15,588.80. An ex parte order was drawn against the defendant, but the same was set aside on payment of costs of Rs. 50/- and the costs were paid. Thereafter the case was posted for filing of the written statement, but the written statement was not filed and the case was adjourned to 16-7-1981, 20-8-1981, 10-9-1981 and 24/9/1981 on costs of Rs. 50/-, Rs. 30/-. Rs. 50/- and Rs. 70/- respectively. On 20-10-1981.the defendant filed the written statement, but the costs imposed on various dates earlier were not paid. The adjournments were granted by the Court despite objections by the plaintiff relating to nonpayment of costs, as well as for granting further adjournments. Even on 20-10-1981, when costs were not paid, it was objected to by the plaintiff and the case was posted for arguments on that matter to 12-11-1981. On 12-11-1981 the plaintiff moved an application under Section 35B(1), C.P.C., and a copy thereof was delivered to the learned counsel for the defendant. That application was heard and was allowed and the defendant was debarred from further prosecution of its defence. It is in these circumstances, the present revision petition has been filed by the defendant against the aforesaid order.
4. I have heard Shri A.K. Mathur, learned counsel for the defendant-petitioner and Shri R.L. Jangid. learned counsel for the plaintiff-non-petitioner.
5. The whole question in the present revision petition is as to whether the learned Court below, in the circumstances of the present case, was justified in allowing the plaintiffs application under Section 35B(1) thereby debarring the defendant from further prosecution of the defence. It may be stated that for the determination of the above question it is not necessary for me to examine as to whether the provision under Section 35B(1). C. P. C., is a mandatory provision or is a directory provision and so it is not necessary to refer to the divergent views taken by the Punjab and Haryana High Court and Orissa High Court. The Orissa High Court in Sri Kasi Biswanath Dev v. Parmananda Rowtrai. (AIR 1982 Orissa 80), has dissented from the Full Bench view of the Punjab and Haryana High Court in Anand Prakash v. Bharat Bhushan Rai (AIR 1981 Punj and Har 269). Dr. B.M. Misra, J, of the Orissa High Court took the view that the provision contained in Section 35B is directory and not mandatory and it was observed 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. The controversy also came up for consideration before this Court in S. B. Civil Revn. Petn,. Number 266 of 1982 -- Gulab Singh v. Dhanraj decided on September 17. 1982. D. P. Gupta, J. also dissented from the aforesaid Full Bench decision of the Punjab and Haryana High Court and agreed with the view taken by the learned Judge of the Orissa High Court in Sri Kasi Biswanath Dev's case (supra). There were other earlier Punjab and Haryana cases (referred to in that judgment), with which Gupta. J., expressed agreement. Gupta, J., in Gulab Singh's case (supra) observed as under:--
'Section 35B has undoubtedly been introduced in the Code by the Amendment Act of 1976 for the purpose of controlling the conduct of the parties in civil litigation and to overcome the deliberate attempts of parties to cause inexcusable and inordinate delay in the disposal of civil cases. It was desired that civil cases, which are ordinarily taking very long time in disposal, should be diligently prosecuted and should be expeditiously decided. It was with that end in view that the legislature introduced the provisions contained in Section 35B(1). But the introduction of such a provision was not intended to completely oust the jurisdiction of the Court to condone a lapse in the conduct of litigation by a party, in not making payment of costs on the next date fixed in the suit, on account of a bona fide mistake or an inadvertent error or for reasons beyond his control. Of course the Court may debar the further prosecution of the plaintiffs case, if the plaintiff is at fault or the prosecution of the defence, if the defendant is at fault, in making payment of the amount of costs determined by the court; yet the defaulting party can request the court to grant further time or a reasonable opportunity for the purpose of making payment of the amount of costs and if the other party can be compensated by payment of further costs and no serious or substantial prejudice is likely to be caused to the other party, the court should not take the extreme step of shutting the prosecution of the case filed by the plaintiff or the defence of the defendant, as the case may be.'
6. Section 35B is a provision, whichhas been introduced with a view to expedile the trial of the civil cases and to curb the practice of grant of adjournments or seeking of adjournments as a matter of course. It is a matter of common knowledge that the trial of civil cases is unduly prolonged and adjournments are sought and granted in a routine manner. Section 35B imposes an obligation on the court to impose costs on the party which has failed to take steps, which it was required to take on a particular date or if the party obtains an adjournment for taking such steps or for production of evidence. This provision further lays down that costs are required to be paid on the next date fixed in the case and payment of costs is a condition precedent for further prosecution of the suit by the plaintiff, when he was ordered to pay the costs or further prosecution of the defence by the defendant, when the defendant was ordered to pay the costs. Unless costs are paid, further prosecution of the case would not be possible. The provision does not ge beyond that. Section 35B nowhere provides that the court would not be competent to adjourn the case without payment of costs. What is forbibdden is further prosecution of the suit or further prosecution of the defence. If ultimately costs are paid, which have been imposed on earlier dates, then only, further pro-section of the suit or further prosecution of the defence by the defendant could be possible.
7. In the present case, no doubt, it is true that as many as four adjournments were granted and in all, Rs. 200/- were imposed by way of costs and it is also true that the case was adjourned from time to time without payment of costs, imposed earlier, and, even on the last date, when the written statement was filed, the costs were not paid despite objection by the plaintiff, but ultimately on 7-1-1982, when the case was fixed for arguments on the application, costs imposed were offered to the plaintiff's counsel, but the plaintiff's counsel refused to accept the same. It may be stated that the defendant was prepared to comply with the condition precedent as envisaged by Section 35B. The written statement could be taken on record and would have become part of the record on payment of costs and costs were offered on 7-1-1982 and on that date, thecondition precedent of payment of costs would have been fulfilled. The court would have been justified to proceed to take action under Section 35B, if costs would not have been offered, but the Court could not be said to be justified in passing the impugned order even when the defendant was prepared to fulfil the condition precedent as contemplated by Section 35B, C. P. C.
8. Mr. R. L. Jangid, learned counsel for the non-petitioner, submitted that the conduct of the defendant was contumacious and insincere, inasmuch as in the application dated 7-1-1982, it has been wrongly stated that the costs were offered to the plaintiff's counsel more than once and it has also been wrongly stated in the memo of revision that the costs were not paid because of the absence of the, plaintiff's counsel. It was also urged by him that the Court was justified in passing the impugned order, as the court had been quite indulgent in grant of adjournments, despite that, deliberately the costs were not paid by the defendant while seeking further adjournments. The conduct of the defendant shows that it unnecessarily wanted to protract the litigation and to cause undue delay in the expeditious trial of the suit. In this connection suffice it to say that the plaintiff could have invited the attention of the court on the provision of Section 35B on 20-8-1981 when the costs imposed on 16-7-1981 was not -paid on that date. Although, the plaintiff raised objections on the grant of adjournments on the various dates, but the application under Section 35B was filed by the plaintiff as late as 12-11-1981, when adjournments had already been granted on payment of costs, though the costs imposed earlier were not paid, but ultimately on 7-1-1982 costs were offered. In view of this situation, in my opinion, it was not a fit case wherein order under Section 35B, C. P. C., could have been passed. A stage had reached, when the defendant was prepared to fulfill the condition precedent. In this view of the matter, the impugned order deserves to be set aside subject to certain conditions.
9. The revision petition is therefore, allowed and the impugned order is set aside subject to the condition that the defendant shall deposit the amount of Rupees 220/- within thirty days in the court below from today. On depositing the costs the written statement filed by thedefendant, shall be treated to be part of the record. In case, the costs are not deposited, the impugned order shall stand. Costs of this revision petition shall be easy.