KAUSHALIYA Vs. JAGAT SINGH

JUDGEMENT

(1.) THE challenge in revision here is to the impugned order of the trial court declining to dismiss the suit of the plaintiff for non-payment of costs in keeping with the provisions of section 35-B of the Code of Civil Procedure.

(2.) A reference to the record shows that on August 7, 1989, the case was adjourned for the plaintiff's evidence subject to payment of Rs. 100/- as costs. On the next date of hearing, the plaintiff did not produce his evidence nor did he pay the costs imposed. The matter was, however, again adjourned to September 29, 1989 and on that date too, the same state of affairs occurred, namely; that the plaintiff did not produce his evidence nor did he pay the costs imposed and the case was then adjourned to October 16, 1989. It was on this date that the plaintiff tendered the costs imposed which the defendant refused to accept. Relying upon the judgment of this Court in Smt. Gurmail Kaur and ors. v. Smt. Manjit Kaur, 1986(2) PLR 573, Mr. Sarwan Singh, counsel for the petitioner sought to contend that the suit of the plaintiff should have been dismissed on the failure of plaintiff to pay the costs on the first date fixed for this purpose. A reading of this judgment would, however, show that the defence of the defendant was no doubt struck off in terms of Section 35-B of the Code of Civil Procedure for non-payment of costs on the due date but the significant distinguishing feature, however, from the present case is that there costs had not been paid by the defendant even when the plaintiff had asked for them. This not being the circumstance here, no exception can be taken to the impugned order of the trial court declining the prayer of the petitioner for dismissal of the plaintiff's suit for non-payment of costs.