S.N Kapoor, J.:— This revision petition is directed against an order under S. 35-B of the Code of Civil Procedure holding that the plaintiff had no right to further prosecute the case for his failure to pay costs of Rs. 100/-, and dismissing the suit.
2. Brief facts giving rise to the present petition are as under:
It appears from the order sheet that on 14th January 1985, learned counsel for the plaintiff requested to give a date for evidence and the case was adjourned subject to payment of costs of Rs. 100/-, to 8th February, 1985. On 6th February 1985, the plaintiff's counsel was not ready to pay the costs on the ground that the plaintiff did not want to produce the evidence as certified copy of form ‘A’ had already been filed. It was also clarified that the cost was imposed for adjournment of hearing and copy of form ‘A’ along with the application was filed after the case was adjourned on 14th January, 1985. Thus it appears that plaintiff failed to pay the cost on the next date i.e 6th February 1985. Despite the request of the counsel for defendant to dismiss the suit, learned Trial Court adjourned the case for arguments on the point of dismissal of the suit on the ground of non-payment of costs as well as for final arguments. On 12th March 1985 again, the counsel for plaintiff requested for a date for payment of cost of Rs. 100/- and the case was adjourned to 18th March, 1985. Neither on 12th March 1985 nor on 18th March cost was offered for payment. On 19th March 1985, counsel for the plaintiff/petitioner showed his willingness to pay the costs without offering the same for payment and without depositing the same in Court on refusal to accept the cost by the counsel for the respondent.
3. On 19th March, 1985, the learned Trial Court passed the impugned order, relying on AIR 1981 Punj and Har 269 (Full Bench) Anand Prakash v. Bharat Bhushan Rai and holding that the plaintiff had no right to further prosecute and dismissed the suit. The operative portion of the impugned order reads as under:
“So, relying on this judgment and under S. 35-B, C.P.C plaintiff was duty bound to pay cost of adjournment on 6-2-1985 to further prosecute the case. When plaintiff has chosen to refuse the payment of cost then his case is liable to be dismissed under S. 35(B) of the C.P.C The fact that now the plaintiff is ready to pay the cost is not material when once plaintiff had chosen not to pay the same. Accordingly, I hold that plaintiff has no right to further prosecute the case. So the case of the plaintiff is liable to be dismissed. Accordingly, the same is dismissed. Be consigned to Record Room.
Sub Judge”
4. Feeling aggrieved by the said order, the present revision petition has been filed alleging that the learned Trial Court has passed the order in complete violation of S. 35(B) and the circumstances did not warrant dismissal.
5. I could not have the benefit of assistance from the learned counsel for revision petitioner due to his continued non-availability. I have gone through the record and heard Shri G.N Aggarwal, learned counsel for the respondent.
6. The learned counsel for the respondent questioned the maintainability of the revision petition. He submitted that as the suit had been dismissed, a decree had to follow under S. 33 of the Code of Civil Procedure. And as such, an appeal should have been filed under S. 96 of the Code of Civil Procedure. Mr. G.N Aggarwal also submitted that even otherwise, revision petition is devoid of any merit.
7. A reading of the impugned order makes it abundantly clear that the order in question was passed under S. 35-B, C.P.C It is notable that there is a specific provision for appeal against such an order under clause (ff) of sub-section (1) of Section 104, C.P.C Consequently, instead of revision, an appeal should have been filed. And, where appeal should be filed, revision could not be filed in view of the phrase “and in which no appeal lies thereto” in S. 151 of the Code. As such, one has to accept that revision is not maintainable as submitted by Shri G.N Aggarwal.
8. Coming to the merits, Shri G.N Aggarwal, learned counsel for the respondent referred to AIR 1981 Punj and Har 269 (FB) Anand Prakash v. Bharat Bhushan Rai. In that case, the consequence and result flowing from failure to pay costs imposed under S. 35-B, C.P.C on the next date, were considered and the Court observed as under:
“…………… in the event of party failing to pay the costs on the date next following the date of the order imposing costs, it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be and that no other extraneous consideration would weigh with the Court in exercising its jurisdiction against the delinquent party. However, in cases, where costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power under S. 148 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction.”
(Emphasis supplied)
9. It is apparent from a bare reading of S. 35-B that payment of costs imposed under S. 35-B(1) shall be a condition precedent to the further prosecution of the suit by the plaintiff in the present case on a next date following the date of the order imposing the costs. It is also apparent that the provision is mandatory in nature. In such a situation, at first blush it may appear that there could be two options before the Court, one is that the case should be consigned to record room and recover the cost imposed by issuing attachment order etc., and the second is to dismiss the suit to stop further prosecution. The provision of S. 35-B do not say in so many words that it is mandatory to dismiss the suit. But it also does not provide that plaintiff or defendant should be allowed to prosecute subsequently after payment of cost. Consequently, there is no option but to dismiss the suit. It is notable that revision petition does not disclose any ground for extending the time for payment of costs under S. 148 of the Code of Civil Procedure, to save the revision petitioner, who is likely to suffer due to failure to pay costs on 6th February, 1985. Consequently, this Court cannot extend the time to pay the costs under S. 148 of the Code.
10. In view of the factual and legal position mentioned above, I am of the considered opinion that this revision petition is devoid of any force. I would not like to interfere with the impugned order. The revision petition is accordingly dismissed without any orders about cost. A copy of the order be sent to the learned Trial Court along with the Trial Court record as expeditiously as possible, for its information.
11. Petition dismissed.