VASANT SHAH Vs. MAGANLAL HIRJIBHAI THAKKAR

JUDGEMENT

(1.) The original defendant No. 2 is aggrieved by the Order directing him to pay special cost in sum of Rs. 2,000.00 to the plaintiff.

(2.) In the Civil Suit issues were framed on 6-3-1990 and the matter could not be proceeded with on the earlier two occasions on account of adjournments sought by the defendant. Ultimately, on 25-9-1990, the learned Judge rejected the application submitted by the defendant No. 2 in person seeking adjournment of the suit on the ground of change of the learned Advocate. The learned Judge observed that when the desired adjournment could not be obtained, the recourse is made to further dilatory tactics by means of the present application purported to have been made by defendant No. 2 in person. The learned Judge also observed that this application is smacked of mala fide on the part of defendant No. 2 as well as his learned Advocate. The learned Judge further observed that no ground whatsoever was given as to why defendant No. 2 wanted to change his Advocate when the matter was set down for recording the evidence. In view of dilatory tactics adopted by the litigant, the learned Judge passed an order for special costs in sum of Rs. 2,000.00.

(3.) The learned Advocate for the petitioner submitted that under Sec. 35B of the Code of Civil Procedure, this order could not have been passed because that section provides for awarding costs for causing delay and that too only if the party to the suit obtains an adjournment on any date fixed for hearing of a suit or for taking any step therein, the Court may make an order requiring such party to pay to the other side such costs as would, in the opinion of the Court should be reasonable and sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date. It is submitted that when the adjournment is refused on this application being made, the question of causing the delay would not arise.