- (1.) THE respondent filed a suit for recovery of some money against the petitioner. It appears that the respondent was allowed time to file replication on payment of costs. On the date when the replication was filed, the costs were not paid. The learned trial Judge however accepted the replication and ordered that the costs be paid on the next date of hearing. This order passed by the learned Subordinate Judge has been challenged by the petitioner on the ground that since the adjournment granted for filing the replication was conditional on payment of costs and the costs. had not been paid on the date when the replication was filed, the suit Filed by the respondent should have been dismissed. In support of this contention, the learned counsel for the petitioner relies upon the language employed in S. 35-B of the Civil P. C. the relevant portion of which reads as under:-- "35-B: Costs for causing delay (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 0 to take on that date, or (b) obtains an adjournment for taking such step or for producing evidence or on any other and the Court ma for reasons to be recorded, make an other 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. "
(2.) IT is no doubt true that the language employed is peremptory in nature the use of the word "shall" does necessarily indicate that a Court which seized of the ease has no discretion in matter. It has to take into consideration the degree of the default, the nature the stage of the proceedings for pas the appropriate o per. By way of analogy we might refer to O. 11, R. 21, Civil P. C. wherein also the word "shall" has been used. The material portion of it reads as under:-- "where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out.
(3.) THE provision came up for interpretation before the Supreme Court in M/s Babbar Sewing Machine Co. v. Trilok Nath Mahajan, AIR 1978 SC 1436. It was held: "the principle governing the courts exercise of its discretion under O. XI, R. 21, as already stated is that it is only when the default is wilful and as a last resort that the court should dismiss the suit or strike out the defence, when the party is guilty of such contumacious conduct or there is a wilful attempt to disregard the order of the court that the trial of the suit is arrested. . . . . . . . . . . . . . ";