- (1.) THIS revision petition is directed against the order of the Subordinate Judge, 2nd Class, Ambala, dated 27.10.1977.
(2.) BRIEFLY the facts which have given rise to this revision petition are as follows. The plaintiffs instituted a suit for possession of land in dispute. During the pendency of the suit, Talab, plaintiff No. 2 died and Baboo and Pitamber, who had been impleaded as plaintiffs on the death of Smt. Hira Devi, plaintiff No. 1, made an application that they were the legal representatives of Talab as he had executed a will in their favour. The defendants contested their claim. The applicants, in support of their application, led evidence on 23.04.1977. Thereafter the case was adjourned for evidence of the defendants for 14.06.1977. The Presiding Officer of the Court had relinquished the charge prior to that date and consequently the case and the application were adjourned to 20.07.1977. On that date the application was adjourned for, evidence of the defendant -respondents to 16.08.1977. The defendants did not bring any evidence on that date and the case was adjourned to 17.10.1977 for their evidence subject to payment of Rs. 20.00 as costs. On the adjourned date, the defendants neither brought their evidence nor paid the costs. Consequently their evidence was closed. A dispute was raised by the plaintiffs on that date that the defence of the defendants in the main case be also struck off as they had failed to pay the costs. The case was consequently adjourned to 20.10.1977. The counsel for the defendants, on the adjourned date, made an application that the defendants did not want to give any evidence.
(3.) THE learned trial Court, in view of the aforesaid circumstances, ordered that the defence of the defendants in the main case be struck off. The defendants have come up in revision against the order of the Subordinate Judge, to this Court. The only question that requires determination is whether in the circumstances of the case, the defence of the petitioners could be struck off. In order to determine this question, it will be necessary to read Sec. 35 -B of the Code of Civil Procedure, which is as follows : - "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 Code, to take on that date, or (b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded, make an order 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 defendants, where the defendant was ordered to pay such costs. Explanation. - Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs. (2) The costs, ordered to be paid under sub -s. (1) shall not, if paid, be included in the cost, awarded in the decree passed in the suit, but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons." ;