RAJ KISHORE GUPTA Vs. SHANTI DEVI

JUDGEMENT

(1.) Defendant is the petitioner. Opposite party 1 filed a suit against the petitioner and opposite party 2 for declaration that she was the absolute owner of Truck No. B.R.Y. 263 and for other reliefs.

(2.) On 16-1-1981 the suit was fixed for hearing and opposite party 1 applied for time. The Court below granted it by awarding cost against her and in favour of the petitioner. On 6-1-1982 when the suit was fixed for hearing, opposite party 1 again prayed for time and it was adjourned on payment of cost of Rs. 25/-. Opposite party 1 did not pay the cost so awarded and an application was filed for dismissal of the suit in terms of S.35-B of the Civil P.C. The Court below after hearing the parties, rejected the prayer of the petitioner by order dt. 12-2-1982. This order has been challenged in this revision application.

(3.) In this civil revision application, we are to see the scope of S.35-B of the Civil P.C. Can it be held that by not paying the cost, opposite party No. 1 has forfeited her right to prosecute the suit? Section 35-B was inserted in the Code by the Code of Civil Procedure (Amendment) Act, 1976. The heading is "Cost for causing delay" and S.35-B reads as follows : "35-B.(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit - (a) fails to take the step which he was required by or under this Code to take on that date, or (b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of - (a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs, (b) the defence by the defendant, where the defendant was ordered to pay such costs. Explanation. - Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs. (2) The costs, ordered to be paid under sub-s.(1) shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons."