J.V. Gupta, J. - (1.) This petition is directed against the order of the trial Court, whereby the defence of the petitioner has been struck off under Sec. 35(B) of the Civil Procedure Code.
(2.) No one is present on behalf of the plaintiff -respondent in -spite of issuance of actual date notice. Earlier Sh. J.S. Aziz, Advocate Ludhiana appeared in this Court in Civil Misc. No. 3923 -C of 1982 on 24th September, 1982 on which it was ordered that it should come up with the main case.
(3.) The suit in the trial Court was fixed for 5th April, 1982 when it was adjourned for defence evidence for 1st June, 1982 on payment of Rs. 40/ - as costs. On 1st June, 1982 the case was adjourned to 6th August, 1982 for the evidence of the defendants as the witnesses not brought the sum ironed records. However, the witnesses present were paid the diet money for 6th August, 1982. On 2nd June, 1982 the plaintiff moved an application under Sec. 35(B) of the Civil Procedure Code alleging that the costs of Rs. 40/ - were not paid on 1st June, 1982 and hence the defence be struck off. In reply to the application it was submitted on behalf of the defendants -petitioner that costs could not be paid on 1st June, 1982 because the counsel for the parties were not present and there was no lapse on the part of the defendants to pay the costs and it was a bonafide omission and it was further prayed that there was sufficient cause for condonation of delay and extension of time for payment of costs under Sec. 148 of the Civil Procedure Code. A sum of Rs. 40/ - as costs was actually tendered for payment on 15th June, 1982 when this application came up for hearing. However, the trial Court took the view that in view of the Full Bench judgment of this Court reported in Anand Parkash v/s. Bharat Bhushan : (1981) 83 P.L.R. 555 the offering of costs, on 15th June, 1982 could not be of any benefit to the defendants as to save themselves from the rigour of Sec. 35 -B. Consequently, the defence of the defendants was ordered to be struck off. Dissatisfied with the same, the defendants have come up in revision in this Court.;