MUNICIPAL COMMITTEE KHARKHODA Vs. BHIM SINGH

JUDGEMENT

(1.) THE point involved in this bench of revision petition is whether a Court, which passes an order under section 35-B of the Code of Civil Procedure (for short 'the Code') striking off defence for not paying costs, an recall/review its order and/or extend time for payment of costs under section 151 and/or section 148 of the Code, on sufficient case being shown.

(2.) ON 1st March, 1986 the lawyer for the petitioner (defendant in the suit) did not appear and the trial Court ordered ex parte proceedings. Thereafter, an application was filed on its behalf for setting aside the ex parte proceedings. On 31st March, 1986 the order dated 1st March, 1986 was recalled on payment of Rs. 100/- as conditional costs and the case was adjourned to 13th May, 1986 for payment of costs and for the plaintiff to produce his witnesses. On 13th May, 1986 the costs were not paid and the Court invoked the provisions of Section 35-B of the Code and struck off the defence and adjourned the case to 22nd August, 1986 for plaintiff's witnesses. There was no note whether the plaintiff's witnesses were summoned for or present on 13.5.1986. Thereafter the defendant filed an application before the trial Court for recalling order dated 13th May, 1986 and to grant more time for payment of costs for the reasons stated in the application. That application has been dismissed by the trial Court vide order dated 30th September, 1986 with the observations that it had no jurisdiction to review the earlier order. It also noticed that the defendant had moved the High Court in revision against the order dated 13th May, 1986. The first set (C.R. Nos. 2331 to 2336 of 1986) is against the order dated 13th May, 1986 and the second set (C.R. Nos. 3489 to 3494 of 1986) is against the orders dated 30th September, 1986.

(3.) FOR the aforesaid view I draw analogy from Order 9, Rule 4; Order 9 Rule 7; Order 9 Rule 9; and Order 9 Rule 13 of the Code. It is true that in all these rules specific provision is made permitting the defaulting party to move the Court for recalling or modifying the order. Since there is not specific provision under section 35-B of the Code, section 151 of the Code would be attracted under its inherent jurisdiction, if the Court is satisfied that there was a sufficient cause for the defaulting party for not paying the costs on the date fixed, the Court can enlarge the time under section 148 of the Code. That is why there are certain observations in the Full Bench judgment of this Court, reported as Shri Anand Parkash v. Shri Bharat Bhushan Rai and another, 1982(1) RCR 1 (1981 P.L.R. 555), which are to the following effect:-