SRI KASI BISWANATH DEV Vs. PARAMANANDA ROUTRAI

JUDGEMENT

(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 reissue 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 that evidences 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 :-

(3.) Section 35-B of the Code is admittedly a procedural provision. Undoubtedly, it was introduced into the statute with a view to controlling the conduct 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):