Section 35-B of the Code of Civil Procedure, 1908: A Critical Appraisal of its Jurisprudential Trajectory

Section 35-B of the Code of Civil Procedure, 1908: A Critical Appraisal of its Jurisprudential Trajectory

Abstract

Enacted by the Code of Civil Procedure (Amendment) Act 1976, Section 35-B CPC was conceived as a procedural instrument to discipline dilatory litigants by imposing real costs and by curtailing the right to prosecute or defend upon default of payment. Nearly five decades later, the provision remains vigorously debated—chiefly on the questions whether it is mandatory or directory, the extent of the court’s power to dismiss a suit or strike a defence, and its relationship with the broader statutory framework governing costs and adjournments. Drawing on leading Supreme Court and High Court authorities, this article critically analyses the jurisprudential evolution of Section 35-B, evaluates its effectiveness, and proposes doctrinal as well as legislative refinements that could enhance procedural efficiency without compromising access to justice.

1. Introduction

Delay in civil litigation has long been recognised as a systemic pathology of the Indian judiciary. Among several legislative responses, Section 35-B CPC sought to impose a financial and procedural deterrent against unnecessary adjournments. While the text appears straightforward, its practical application has generated divergent judicial approaches, necessitating a close examination of the statutory language, the legislative purpose, and the interpretative choices of courts across jurisdictions.

2. Legislative Genesis and Textual Overview

  • Inserted by Act 104 of 1976, w.e.f. 1-2-1977.
  • Core text: Where a party fails to take a procedural step or seeks an adjournment, “the court shall order that such party pay costs; payment on the next date shall be a condition precedent to further prosecution of the suit or defence.”
  • Sub-section (2) excludes such costs from the eventual decree and prescribes a separate executable order.

3. Legislative Purpose

The Law Commission explicitly identified the culture of routine adjournments as a prime cause of backlog, recommending penal costs to curb the practice.[1] Section 35-B therefore embodies a disciplinary as well as a compensatory objective: it penalises the defaulting party and compensates the other side for delay.

4. Judicial Exegesis

4.1 Early High Court Approaches

Soon after its enactment, High Courts wrestled with whether the payment of costs on the “next date” was mandatory. In Anand Parkash v. Bharat Bhushan Rai (P&H FB, 1981) the Full Bench adopted a strict construction, holding that non-payment automatically barred further prosecution; the provision was described as “mandatory in character”.[2] Subsequent decisions in Surendra Mohan Sangma (Gauhati HC, 1987)[3] and Kasi Biswanath Dev (Orissa HC, 1981)[4] tempered this rigidity by invoking Section 148 CPC to extend time where the default was neither wilful nor contumacious.

4.2 Apex Clarification: Manohar Singh v. D.S. Sharma (2009)

The Supreme Court definitively addressed the controversy in Manohar Singh, overturning both the trial court and the Delhi High Court which had dismissed the suit for non-payment of costs. Interpreting the phrase “shall not be allowed to prosecute the suit”, the Court held that Section 35-B merely forfeits the defaulting party’s right of audience until costs are paid; it does not empower the court to dismiss the suit or strike the defence.[5] The judgment harmonises Section 35-B with the overarching principle that procedural laws are hand-maids of justice, not its mistress.

4.3 Realistic Costs and the Section 35 Nexus

In Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust (2011) the Supreme Court, while construing Section 35, lamented the inadequacy of “nominal” costs and exhorted courts to award “realistic” costs that reflect actual expenditure.[6] Though the case centred on Section 35, the Court referenced Section 35-B approvingly as an allied mechanism to deter frivolous adjournments. The judgment underscores that the philosophy of realistic costs permeates the entire scheme of Sections 35, 35-A and 35-B.

4.4 Interface with Broader Procedural Reform

Salem Advocate Bar Association v. Union of India (2005) reaffirmed the constitutional validity of the 1999 and 2002 CPC amendments, emphasising that procedural provisions—including those on costs—must be implemented in a manner that furthers access to justice.[7] The Court’s directive to adopt model ADR rules illustrates the judiciary’s preference for systemic incentives over punitive defaults. Section 35-B operates within this reformist ecosystem by providing targeted sanctions against delay.

4.5 Persistent High Court Divergence

Despite Manohar Singh, some High Court decisions (Piaro Devi, HP HC 2008;[8] Chander v. Rohtas, P&H HC 2001[9]) reveal residual uncertainty—either due to oversight or because litigants fail to invoke Section 148 CPC for enlargement of time. The divergence indicates the need for uniform High Court rules, as envisaged in Salem Advocate Bar Association.

5. Interaction with Other Statutory Provisions

5.1 Section 148 CPC (Extension of Time)

Section 148 confers discretionary power to enlarge any period fixed by the CPC “not exceeding thirty days in total.” Although Section 35-B does not expressly reference Section 148, the Supreme Court in Manohar Singh acknowledged that courts may exercise Section 148—read with inherent powers under Section 151—to extend time where the default is justified.[10] The key is to ensure that such discretion is exercised sparingly so as not to defeat the deterrent purpose of Section 35-B.

5.2 Sections 35 and 35-A CPC

Section 35 embodies the traditional “costs follow the event” rule, while Section 35-A provides for compensatory costs in cases of false or vexatious claims. Section 35-B complements these by targeting procedural default rather than the substantive merit of claims. Together, the trio forms a graduated cost regime—compensatory, punitive, and procedural.

6. Critical Evaluation

  • Effectiveness: Empirical studies suggest that trial courts infrequently invoke Section 35-B, diluting its deterrent value. Where invoked, nominal costs (often below actual expenditure) undermine its compensatory objective.
  • Due Process Concerns: Automatic dismissal, as practised pre-Manohar Singh, risked disproportionate consequences, especially for impecunious litigants.
  • Judicial Discretion: Post-Manohar Singh, courts retain flexibility to bar participation without terminating the lis, striking a balance between discipline and justice.
  • Need for Uniform Rules: High Court amendments could standardise (i) quantum of costs linked to adjournment stage, (ii) criteria for extension under Section 148, and (iii) formats for separate executable cost orders under Section 35-B(2).

7. Recommendations

  1. Statutory amendment to clarify that the provision is directory regarding dismissal but mandatory regarding forfeiture of audience.
  2. Prescribed cost slabs indexed to suit valuation and stage, ensuring realistic compensation.
  3. Mandatory reasons in writing where courts waive or reduce costs, akin to Section 35(2), to promote transparency and appellate review.
  4. Integration of Section 35-B non-compliance data into National Judicial Data Grid to monitor systemic delay patterns.

8. Conclusion

Section 35-B remains an essential—though under-utilised—tool for expediting civil litigation. The Supreme Court’s construction in Manohar Singh restores proportionality by preventing draconian dismissals, yet preserves the section’s deterrent ethos. To fully realise its potential, courts must award realistic costs, exercise Section 148 discretion judiciously, and adopt uniform procedural rules. Such measures would align the provision with the constitutional imperative of speedy justice while safeguarding procedural fairness.

Footnotes

  1. Law Commission of India, 54th Report (1973) on the CPC, para 1-D.83 (proposal for new Section 35-B).
  2. Anand Parkash v. Bharat Bhushan Rai, AIR 1981 P&H 269 (FB).
  3. Surendra Mohan Sangma v. Khetrinath Sangma, 1987 (2) GLR (NOC) 17.
  4. Sri Kasi Biswanath Dev v. Paramananda Routrai, AIR 1982 Orissa 80.
  5. Manohar Singh v. D.S. Sharma, (2010) 1 SCC 53.
  6. Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust, (2012) 1 SCC 455.
  7. Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344.
  8. Piaro Devi v. Anant Ram, 2008 SCC OnLine HP __.
  9. Chander v. Rohtas, 2001 SCC OnLine P&H __.
  10. Manohar Singh, supra note 5, para 18 (invoking Sections 148 & 151 CPC).