(1.) THE respondent filed a suit for recovery of some money against the petitioner. It appears that the respondent was allowed time to file replication on payment of costs. On the date when the replication was filed, the costs were not paid. The learned trial Judge however accepted the replication and ordered that the costs be paid on the next date of hearing. This order passed by the learned Subordinate Judge has been challenged by the petitioner on the ground that since the adjournment granted for filing the replication was conditional on payment of costs and the costs. had not been paid on the date when the replication was filed, the suit Filed by the respondent should have been dismissed. In support of this contention, the learned counsel for the petitioner relies upon the language employed in S. 35-B of the Civil P. C. the relevant portion of which reads as under:--
(2.) IT is no doubt true that the language employed is peremptory in nature the use of the word "shall" does necessarily indicate that a Court which seized of the ease has no discretion in matter. It has to take into consideration the degree of the default, the nature the stage of the proceedings for pas the appropriate o per. By way of analogy we might refer to O. 11, R. 21, Civil P. C. wherein also the word "shall" has been used. The material portion of it reads as under:--
(3.) THE provision came up for interpretation before the Supreme Court in M/s Babbar Sewing Machine Co. v. Trilok Nath Mahajan, AIR 1978 SC 1436. It was held: