- (1.) An ejectment application filed by the Digambar Jain Society Registered, Karnal against Gian Chand was being tried by the Rent Controller, Karnal. The case fixed for the petitioner's evidence on September 10, 1980. Since no witness was present, the Rent Controller granted adjournment to the petitioner on payment of Rs. 30/- as costs and the case adjourned to November 12, 1980. On that day, the parties sought adjournment for compromise which was allowed and the case was posted for hearing on December 10, 1980. No compromise was effected, therefore, the petitioner produced evidence on the subsequent dates of hearing and eventually closed the evidence on August 14, 1981. Later while the case was fixed for the respondent's evidence, an application was filed on January 4, 1982 by the respondent under Section 35B of the Code of Civil Procedure seeking dismissal of the ejectment application for non-payment of costs imposed on the petitioner on September 10, 1980. The learned Rent Controller after hearing the parties accepted this application and invoking the provisions of Section 35-B of the Code dismissed the ejectment application on January 31, 1982. The petitioner preferred an appeal against this order which was accepted by the appellate authority on March 24, 1982. The order of the Rent Controller was set aside and he was directed to proceed with the case. Against this order of the appellate authority, the present revision has been filed by Gian Chand.
(2.) The contention on behalf of the revision-petitioner is that the respondent-Society having failed to pay the costs imposed by the Rent Controller on September 10, 1980, was liable to be proceeded against under Section 35-B of the Code and the ejectment application was, therefore, rightly dismissed by the Rent Controller. It is submitted that the learned appellate authority acted against the provisions of law by setting aside the order of the Rent Controller.
(3.) After hearing the learned counsel for the parties, I find no merit in this contention. It is undisputed that in a Full Bench judgment of this Court in Shri Anand Parkash v. Shri Bharat Bhushan Rai, 1981 83 PunLR 555, it has been categorically held that Section 35-B of the Code is mandatory. However, a consistent view has been taken by this Court in M/s. Allahabad Law Journal Co. Ltd. v. Punjab School Education Board, Chandigarh,1983 PunLR 65 and in Smt. Lachhmi and others v. Nirmal Singh and others,1983 PunLR 205, that the punitive action under Section 35-B is called for only in those cases where the non-payment of costs is intentional and wilful attempt to disregard the order of the Court. It is only when the delinquent party refuses to pay the costs on the date next following the date of such order that such party can be proceeded against under this provision of law. In the instant case, the present respondent was burdened with adjournment costs of Rs. 30/- on September 10, 1980 and the case was adjourned to November 12, 1980. Had the respondent refused or failed to pay the cost on the adjourned hearing the Rent Controller would have been justified in invoking the provisions of Section 35-B of the Code. What however transpired was that on November 12, 1980 both parties sought adjournment for compromise and this request was allowed by the Rent Controller. Therefore, the proceedings carried on for more than one year, during which period, the present respondent was allowed to produce evidence which was concluded on August 14, 1981. Some dates were fixed thereafter for recording evidence of the present petitioner. At no point of time, prior to the filing of application under Section 35-B by the present petitioner, the latter took up any objection with regard to the non-payment of costs nor the Rent Controller took notice of the non-compliance of his order dated September 10, 1980. In such a situation, the only presumption that can be drawn is that the payment of costs imposed on September 10, 1980, had been waived. I am supported in this view by the short judgment of the Supreme Court dated August 30, 1982, in petition for special leave to appeal (Civil No. 3325 of 1982) Smt. Indra Devi v. Sham Lal which was also noticed by this Court earlier in M/s. Allahabad's Law Journal Co. Ltd. . In this petition, the Supreme Court disagreed with the learned Single Judge of this Court who had taken the view that Section 35-B of the Code is directory and not mandatory. Despite this disagreement the petition was dismissed in the following terms : "We do not agree with the view taken by the learned Single Judge that the provisions of Section 35-B C.P.C. are directory. We do not want to interfere inasmuch as from the subsequent conduct of the petitioner, it is clear that he was waived the condition precedent. Special Leave Petition is dismissed.";