- (1.) The defendant-Petitioners has filed this revision petition against the order of the trial Court, dated 31st July, 1980, Whereby his application under Section 35-B of the Code of Civil Procedure, was dismissed.
(2.) In civil Revision No. 2425 of 1979, decided on 17th December, 1979, it was ordered that the plaintiff is allowed to produce the two documents on payment of Rs. 300/- as costs. Since the parties already directed to appeal before the trail court on 3rd December, 1979 in Civil Revision No. 1239 of 1979, the parties appeared before the trial court on that date, but as the record of the case which had been summoned by the High Court, had not been received back in the trial Court, the case was adjourned to 17th December 1979. On 17th December,1979, it appears that the defendant-petitioner M/s Simpy Films Jullundur moved an application for amendment of issue and the case was adjourned to 19th January, 1980, for reply and arguments on that application. On 19th January,1980, the application for amendment issues was dispposed of and the case case was fixed for 15th March, 1980 for evidence of the plaintiff. The order of the trail Court on that date, reproduced in the Grounds for Revision, reads thus: "For evidence of the plaintiff to come up on 15th March, 1980, the costs as ordered by the Hon'ble High Court has not been deposited or tendered or paid till today. It appears, meanwhile, the petitioner defendant moved an application under section 35-B of the Code of Civil Procedure, for dismissal of the suit on the ground that since the plaintiff has failed to pay the costs of Rs. 300/- as ordered by the High Court, the suit was liable to be dismissed in view of the provisions of Section 35-B. The trial Court, after hearing the arguments, had dismissed the same vide impugned order, dated 31st July 1980 it has been observed by the trial Court that :- "In view of the law laid down in the above authorities, the application filed later on by the defendant No. 2 cannot deprive the plaintiff from prosecuting this suit, as it is open to the plaintiff to pay the costs when the documents are produced or tendered into evidence or the evidence or the defendant can recover the costs otherwise." Feeling aggrieved against this, the defendant-petitioner has filed the present revision in this court.
(3.) The learned counsel for the petitioner vehemently contended that the provisions of Section 35-B of the Code of Civil Procedure are clearly attracted and the trial court has acted illegally and with material irregularity in dismissing his application. He also referred to Smt. Hakmi v. Pitambar, (1978) 80 Pun LR 256: (AIR 1978 Punj & Har 145) and Nanak Chand v. Suresh Chand Jain (1979)) 81 Pun LR 581(AIR 1979 Punj & Har 229) in support of his contention.;