Pradeep Nandrajog, J.— This Revision Petition challenges the order dated 27.7.2005
2. By the impugned order, suit filed by the plaintiff who is petitioner herein was dismissed.
3. Backdrop facts leading to the passing of impugned order are as follows.
(a) Plaintiff filed suit for damages for defamation against the defendants who are the respondents herein.
(b) The said case was listed for cross-examination of witness S. Josheph, DW-2 on 7.1.2004 On the said date, at the request of the plaintiff, an adjournment was granted to cross-examine the witness subject to payment of costs.
(c) However, no steps were taken by the plaintiff to pay the costs till 1.4.2005 On 1.4.2005, it was directed that upon deposit of the cost in Court, the witness shall be cross-examined on 27.4.2005 Again, no costs were deposited in the Court by the plaintiff. Matter was listed for 27.7.2005
(d) On 27.7.2005, after noting the provisions of Section 35B of the Code of Civil Procedure, 1908 and failure of the plaintiff to pay the costs, his suit was dismissed.
4. Hence, this present revision petition.
5. Petitioner contended that the provisions of section 35b are directory and that in the event of non-payment of costs on the next date of hearing, the Court was not empowered to debar a party from prosecuting the suit or the defence as the case may be. Petitioner contended that since cross-examination of DW-2 was allowed subject to payment of costs, learned Trial Court ought to have declined only the liberty to cross-examine DW-2 and should not have dismissed the suit of the plaintiff.
6. On the other hand, contention of the learned Counsel for the respondent is that the provisions of section 35b of the code are mandatory and that in the event of non-payment of costs by the plaintiff, Trial Court has rightly dismissed the suit of the plaintiff.
7. In order to effectively deal with the matter, it would be appropriate to notice the provisions of Section 35B of the Code of Civil Procedure which reads as under:
“35B. (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 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 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.”
8. A bare scrutiny of provisions of section 35b would show that the Legislature has made its intention absolutely clear and beyond the pale of any doubt, that the provisions are mandatory in nature in any noncompliance with the same would result in penal consequences as envisaged therein.
9. The expression ‘shall be a condition precedent’ shows that the word ‘shall’ in the Section is qualified by the words ‘condition precedent’.
10. Where a Statute declares that doing of a particular thing shall be a condition precedent, then obviously the intention is to make it a preemptory mandate. A condition precedent is a condition which must be performed. If the Legislature had not intended to make the provisions of the section mandatory, then it was not necessary for the Legislature to have qualified the word ‘shall’ with the words ‘condition precedent’. The words ‘condition precedent’ qualifying the word ‘shall’ appear to be the clincher for interpreting the provisions of section 35b as mandatory.
11. In my view, a plain reading of the section shows that the Court is only required to see whether the costs have been paid or not and if a party does not pay the costs, then the only course open to the Court is to disallow the prosecution of the suit or the defence any further.
12. Similar view was taken by the majority view of the Full Bench of the Punjab and Haryana High Court in the decision Anand Prakash v. Bhushan Rai, AIR 1981 P and H 269 (FB).
13. In view of above discussion, I hold that Trial Court has rightly dismissed the suit of the petitioner/plaintiff.
14. No costs.
Petition dismissed.
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