PREM SAGAR Vs. PHUL CHAND

JUDGEMENT

(1.) Whether the party defaulting in the payment of costs on the date fixed therefor (whereon the question is not at all raised) canon the subsequent or dates be barred from further prosecuting the suit or its defence, as the case may be,--is the significant question which falls for adjudication in this reference, as a corollary to the ratio of the Full Bench in Anand Parkash v. Bharat Bhushan Rai, AIR 1981 Punj & Har 269, in the context of Section 35-B of the Civil P. C.

(2.) Prem Sagar petitioner had preferred an application in the trial Court for obtaining a succession certificate regarding the assets of one Sant Ram, deceased. Therein, 11th of Sept., 1981 was fixed for filing of written reply by the respondents. This having not been done, a prayer for adjournment for fling the written reply was granted by the Court subject to the payment of costs of Rs. 20/- on the next following date the 25th of Sep., 1981. On the said date, reply to the application was allowed to be filed and the question of the payment of costs was not even remotely raised by either side and the case was adjourned to the 10th of Oct., 1981. On the aid date, the petitioner filed an application purporting to be under Section 35-B of the said application was issued to the respondents and the case was adjourned to the 23rd of Oct., 1981. In the reply to the aforesaid application, the respondents pleaded that due to some misunderstanding, they were not ever aware about the order of payment of costs and were always ready and willing to pay the same and further filed an application praying for extension of the period for payment of the costs. Further the costs were tendered on that very day but were not accepted by the other party. By order dated the 9th of Nov., 1982, the trial Court rejected the application under S. 35-B of the Civil P. C. holding that the respondents had never wilfully refused the payment of costs.

(3.) The petitioner then preferred the present civil revision which originally came up before R. N. Mittal, J. Noticing the significance of the ancillary question arising in the wake of the Full Bench judgment in Anand Parkash's case (AIR 1981 Punj & Har 269)(supra), and also some conflict of judicial opinion thereon the matter was referred for consideration by a larger Bench, and that is how it is before us.