Mansa Devi and others vs M/s Sun Rise Ice Factory

J.V. Gupta, J.—This petition is directed against the order of the trial Court, whereby the defence of the petitioner has been struck off u/s 35(B) of the Civil Procedure Code.

No one is present on behalf of the plaintiff-respondent in-spite of issuance of actual date notice. Earlier Sh. J.S. Aziz, Advocate Ludhiana appeared in this Court in Civil Misc. No. 3923-C of 1982 on 24th September, 1982 on which it was ordered that it should come up with the main case.

The suit in the trial Court was fixed for 5th April, 1982 when it was adjourned for defence evidence for 1st June, 1982 on payment of Rs. 40/- as costs. On 1st June, 1982 the case was adjourned to 6th August, 1982 for the evidence of the defendants as the witnesses not brought the sum ironed records. However, the witnesses present were paid the diet money for 6th August, 1982. On 2nd June, 1982 the plaintiff moved an application u/s 35(B) of the CPC alleging that the costs of Rs. 40/- were not paid on 1st June, 1982 and hence the defence be struck off. In reply to the application it was submitted on behalf of the defendants-petitioner that costs could not be paid on 1st June, 1982 because the counsel for the parties were not present and there was no lapse on the part of the defendants to pay the costs and it was a bonafide omission and it was further prayed that there was sufficient cause for condonation of delay and extension of time for payment of costs u/s 148 of the Civil Procedure Code. A sum of Rs. 40/- as costs was actually tendered for payment on 15th June, 1982 when this application came up for hearing. However, the trial Court took the view that in view of the Full Bench judgment of this Court reported in Anand Parkash v. Bharat Bhushan (1981) 83 P.L.R. 555 the offering of costs, on 15th June, 1982 could not be of any benefit to the defendants as to save themselves from the rigour of section 35-B. Consequently, the defence of the defendants was ordered to be struck off. Dissatisfied with the same, the defendants have come up in revision in this Court.

As stated earlier inspite of issuance of actual date notice, no one has appeared today to oppose this petition.

After hearing the learned counsel for the petitioners and going through the affidavits of Shri Banarsi Dass, Advocate (Petitioner No. 2) and of Shri Suraj Parkash learned counsel for the defendants in the trial Court, which were annexed with the Civil revision petition as Annexures A & B respectively as well as the affidavits of Shri Joginder Singh Aziz Advocate for defendants and of Shri A.S. Arora, Advocate for the plaintiff in the trial Court I am of the considered opinion that the ratio of the Full Bench judgment is not applicable to the facts of the present case. Admittedly on 1st June, 1982 on which date the costs were to be paid, the attention of the Court was not drawn to this fact and the case was adjourned for 6th August, 1982 for defendant''s evidence, as the witnesses had not brought the summoned record. Not only that, the witnesses present were paid diet money for 6th August, 1982. Under these circumstances it appears to be correct that the defendants never knew that they were required to pay a sum of Rs. 40/- as costs as their counsel was not present at that time. The mere fact that in the order ("counsel for the parties present") is written is not sufficient, for invoking provision of Section 35-B of the Code of Civil Procedure-The provisions of Section 35-B are attracted only if the conduct of a party was such that they were not willing to pay the costs at all inspite of the fact that their attention was drawn to that effect. The very fact that the attention of the trial Court was not drawn on 1st June, 1982 clearly proves the contention of the defendants-petitioners.

In the facts and circumstances of this case the civil revision is allowed and the impugned order striking off the defence is set aside and the case is sent back for decision on merits in accordance with law. The petitioner have been directed to appear in the trial Court on 14th June, 1983.