SURENDRA MOHAN Vs. KHETRINATH

JUDGEMENT

(1.) The question involved in this revision relates to the scope and effect of S.35B of the Code of Civil Procedure. The question has arisen on these facts. A suit was filed by the petitioners seeking certain reliefs against the opposite parties. In that suit plaintiff No. 4 came to be examined on 15-6-1985. Her examination-in-chief was completed, but on the prayer of the defendants, the cross-examination was deferred to 20-7-1985. On that date the defendants prayed for adjournment of the case. Though the trial court was not fully satisfied about the bona fide of the prayer, none-the-less adjournment was granted on condition that the defendants shall pay adjournment cost of Rs. 200/- and adjourned the case till 24-8-1985. On that date, the defendant again prayed for adjournment. After noting that the defendants had not paid the adjournment cost awarded on the earlier date, the learned trial court thought that in view of the provision of S.35B, there was no scope for allowing the defendants to cross-examine the plaintiff's witnesses. The trial court further felt that there was want of sincerity on the part of the defendants to proceed with the suit. Therefore, after hearing both the sides the petition was rejected and the defence was struck-off and the case was fixed on 1-10-1985 for arguments. On 1-10-1985, a prayer was made to allow the defendants to cross-examine the PW by stating that the cost awarded was very high and beyond the means of the. defendants. It was further stated in the petition that the refusal of the prayer to cross-examine the PW had prejudiced the defendants and the interest of justice demanded that the order passed earlier be set aside. Opportunity was given to the plaintiffs to file objection to this petition which was duly filed. Arguments were thereafter heard on the petition on 25-1-86 and by the impugned order passed on 7-2-1986 opportunity was allowed to the defendants to cross-examine the PW.

(2.) A perusal of the impugned order shows that in allowing the prayer of the defendants to cross-examine the PW, reliance has been placed on Prakash Narain v. Addl. District Judge, AIR 1981 All 120, wherein it has been held that in default of payment of cost, defence cannot be struck-off under S.35-B, and the defendant is only precluded from entering into his defence until the cost is paid. As per this decision, defence is not struck-off but is merely suspended. Recourse has also been taken in the impugned order to S.153 of the Civil P.C. which has given power to the Court to amend any defect or error in any proceeding in a suit for the purpose of determination of real question or issue raised by or depending on such proceedings. The trial Court ultimately stated that the order dt/- 24-8-85 was set aside in exercise of inherent powers of the Court.

(3.) In assailing the impugned order, Shri Goswami has first submitted, and rightly, that there was no scope to invoke S.153 of the Civil P.C. This is not contested by Shri Senapati. The next submission of Shri Goswami is that inherent powers was also not available to the Court to set aside the order of 24-3-85 inasmuch as the same would be contrary to the provisions contained in S.35-B. Now, it is a settled law that inherent power cannot be exercised against an express provision of the Code. It has, therefore, to be seen whether S.35-B prohibited recourse to the inherent power to grant the relief in question. S.35B reads as follows :-