ANAND PARKASH Vs. BHARAT BHUSHAN RAI

JUDGEMENT

(1.) The facts of the case are given in the elaborate order of reference prepared by my learned brother P. C. Jain, J. and I need not repeat them all over again. The short question which this full Bench is called upon to decide is whether the provisions of Section 35-B of the Code of Civil procedure (hereinafter referred to as the code) are mandatory, and if so, to what extent.

(2.) In spite of the elaborate provisions contained in the Code, the civil cases pending before the trial courts are not being disposed of as expeditiously as is desirable. The causes for these delays are of course many, which need not be detailed here. It suffices to mention that the matter received the attention of the Law Commission, which made an elaborate inquiry into the matter and submitted its report to the government of India with the recommendation that the code of Civil Procedure 1908 be thoroughly over hauled and re-enacted. The said report contained a recommendation that a new section namely Section 35B be added to the Code to make provision for costs being awarded to the aggrieved party for the delays in the prosecution of the suit caused by its opponent. The deliberations made by the commission as a result of the suggestions received by it, make the position self evident. The relevant portion of the report pertaining to this section reads as under:-

(3.) Whether the use of the word "shall" necessarily renders a statutory provision mandatory or not, came up for consideration before the Supreme Court of India in State of Uttar Pradesh v. Babu Ram Upadhya, AIR 1961 SC 751(at p. 765), wherein the Court held:--