RAJENDRA NATH MITTAL, J. - (1.) THIS revision has been filed by defendants Nos. 1 and 3 against, the order of the Subordinate Judge, Bhatinda, dated 27th August, 1982, by which their defence has been struck off.
(2.) BRIEFLY , the facts are that the plaintiff instituted a suit for recovery of Rs. 1,50,000/- as damages against the defendants. The suit was fixed for 14th September, 1981, for the evidence of the plaintiff. On that day, the plaintiff did not produce the evidence and it was adjourned to 30th November, 1981, on payment of Rs. 15/- as costs. On 2nd November, an application for admission and denial in which notice was issued to the respondents for 19th December, 1981. On the adjourned date, the defendants did not file the reply and at their request, the application was adjourned to 23rd January, 1982, on payment of Rs. 10/- as costs. On the next date also, the defendants did not file the reply and sought an adjournment. The application was adjourned to 12th February, 1982, on payment of further costs of Rs. 15/-. On 12th February, 1982, an adjournment was again sought for the purpose by the defendants. It was adjourned to 11th March, 1982, the costs of Rs. 10/- as costs. On 11th March, 1982, the costs of Rs. 10/- which were awarded on 12th February, 1982, were paid and the case was adjourned. On 27th July, 1982, an application for striking off the defence was filed by the plaintiff under section 35-B of the Code of Civil Procedure (hereinafter referred to as the Code), on the ground that the defendants had failed to pay the costs awarded on 19th December, 1981, and 23rd January, 1982. The application was accepted by the trial Court and it struck off the defence. Defendants Nos. 1 to 3 have come up in revision against the said order to this Court.
(3.) THE only question that arises for determination is as to whether the defence of the defendants can be struck off a later date on the ground that the costs which were payable on earlier dates and not been paid by them. The matter is covered by a decision of this Court in Assa Nand v. Shri Harish Kumar and others, 1982 P.L.R. 582. The following observations of the learned Judge, as extracted in the head-note, may be read with advantage :- "Section 35B of the Code inter alia provides that if on any date fixed the case is adjourned on payment of costs, the payment of such costs shall be a condition precedent to the further prosecution of the suit by the plaintiff where the plaintiff was ordered to pay such costs. Thus, it will be reasonable to conclude that in a case where the cost imposed are not paid, on that very date when the costs are to be paid, the attention of the Court should be drawn so that further prosecution of the shit may take place only if necessary compliance has been made. If no such step is taken by the party who intends to invoke the provisions of section 35-B of the Code, and remains silent and allows the court to proceed with the suit he cannot be allowed to agitate the alleged non-payment, if any, after that date. In such a situation, the provisions of section 35-B of the Code are not at all attracted." ;