KARTAR SINGH Vs. BHOLA NATH

JUDGEMENT

(1.) This petition is directed against the order of the trial Court dated 28th August, 1982 whereby the defendant was disallowed from prosecuting its defence under Section 35-B of the Civil Procedure Code. The case was fixed for defence evidence on 3rd May, 1982 when it was adjourned to 21st July, 1982 on payment of Rs. 20/- as costs. However, later on the said date was changed to 20th July, 1982 on a written application filed on behalf of the defendants. On that date i.e. on 20th July, 1982 the case was adjourned to 3rd August, 1982. On 3rd August, 1982 the plaintiff moved an application under Section 35.B of the Civil Procedure Code alleging that the costs of Rs. 20/- were not paid on 20th July 1982 and hence the defence be struck off. This application was contested on behalf of the defendant-petitioner. It was pleaded that costs were paid to the plaintiff as his counsel was not present on 20th July, 1982. However, the trial court found that the payment of costs was not recorded in the order dated 20th July, 1982 and therefore it could not be accepted that the costs were paid. Consequently, relying upon the Full Bench judgment of this Court reported in Anad Parkash v. Bharat Bhusan Pai and another , 1981 AIR(P&H) 269) the trial Court disallowed the defendant from prosecuting its defence.

(2.) After hearing the learned counsel for the parties I am of the considered opinion that there was no occasion for the trail Court to strike down the defence of the defendant-petitioners. Admittedly, the case was adjourned form 20th July, 1982 to 3rd August, 1982. In case the costs were not paid on 20th July, 1982 then it was obligatory on the part of the plaintiff to invite the attention of the court and to get necessary orders passed under Section 35-B of the Code. Having failed to do so on that date when the costs were not to be paid the provisions of section 35-B could not be invoked on the subsequent date.

(3.) The Full Bench judgment of this Court relied upon does not lay down that action under Section 35-B of the Civil Procedure Code could be not taken at any time. Under these circumstances this petition succeeds. The impugned order of the trial court is set aside and it is directed that the trial Court will proceed with the suit in accordance with the law. The parties have been directed to appear in the trial court on Ist November, 1983. There will be no order as to costs.