PRAKASH NARAIN Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) The present petition has been filed by the defendant in a suit for partition. The defendant, after filing his written statement, it appears, delayed the suit from time to time by seeking adjournments or amendments in the pleadings or otherwise. On three days the adjournment or amendment was allowed on payment of costs. On 10th January 1974 Rs. 10/- were awarded as costs. On 25th May 1977 again Rs. 10/- were awarded as costs and on 21-7-1977 Rs. 20/-was awarded as costs. These costs were awarded by orders without specifying any period under which they were to be paid as is clear from paragraph 4 of the writ petition. On 2nd June 1979 an application was made by the plaintiff-respondent for striking off the defence of the petitioner under Section 35-B of the C. P. C. as he had failed to pay the cost.

(2.) The trial court rejected the application by order dated 2-1-1979 (Annexure 3 to the writ petition). A revision was filed by the respondent and the VI Addl. District Judge, Bijnor allowed the revision and ordered the defence of the petitioner to be struck off for non-payment of the costs mentioned above.

(3.) It is not disputed that in the orders for payment of costs no period was fixed. The learned counsel for the respondent, however, argued that under Section 35-B the time is fixed for payment of costs as the next following date of the order. He relies on the following: