DWARKA PRASAD, J. - (1.) A sum of Rs. 30/ - was awarded as costs to the defendant opposite party on February 10, 1982 as the plaintiff petitioner did not file the list of his witnesses nor his witnesses were present in the court while the case was fixed for recording his evidence on that date. On the next date fixed in the case i. e. February 22, 1982 the plaintiff prayed for further time to produce his evidence and to make payment of costs. The time was allowed with consent of the learned counsel for the defendant. Similarly, time was again allowed to the plaintiff for producing his evidence and for payment of costs on April 24, 1982. The case was then fixed for July 29, 1982 and on this date the plaintiff again asked for an adjournment, but the defendant objected to it on the ground that the earlier costs had not been paid. The plaintiff was prepared to make part payment of the sum of Rs. 20/ - but the learned counsel for the defendant was not prepared to accept incomplete payment of the amount of costs. In these circumstances, the trial court closed the evidence of the plaintiff.
(2.) IN this revision petition the learned counsel for the plaintiff-petitioner submits that the plaintiff does not desire to examine any other witness except the plaintiff himself and he is prepared to pay costs of Rs. 30/- which were awarded on Feb. 10, 1982 and any other amount of costs which the court may consider necessary to impose for the adjournment of the case on July 29, 1982. It is submitted by the learned counsel for the petitioner that on July 29, 1982 the plaintiff had only Rs. 20/- with him and as such he prayed merely for a short time for making payment of the remaining part of the amount of costs, but the trial court took a very stringent view of the matter and closed the plaintiff's evidence on that date. Leaned counsel for the defendant-opposite party relied upon the provisions of Section 35-B (l) C. P. C. and also placed reliance upon the full bench decision of the Punjab and Haryana High Court in Anand Prakash V. Bharat Bhusan Rai (1) while supporting the order passed by the trial court. Section 35- (B) (1) of the Code of Civil Procedure runs as under :- "35 - B (l ).- 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 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, & payment of such costs, on the date next following the date of such orders, 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 defendant, where the defendant was ordered to pay such costs". In Anand Prakash's case (supra), a Full Bench of the Punjab and Haryana High Court took the view that the word "shall" occurring in Section 35-B (1) renders the provision mandatory and that if the costs are not paid on the date next following the date of the order imposing such costs, the court is bound to disallow the further prosecution of the suit or the defence, as the case may be. However, an exception was made, even by the learned judges constituting a majority in the aforesaid case, namely, if the costs were not paid as a result of circumstances beyond the control of the defaulting party and it was held that then the court would be well within its jurisdiction to exercise the power under section 148 of the Code in favour of the defaulting party, considering than an appropriate case is made out for the exercise of its jurisdiction under the aforesaid provision. The Judges constituting the majority of the Full Bench of the Punjab and Haryana High Court proceeded to over-rule the Division Bench judgment of that very Court in Manjeet Singh vs. State Bank of India (2) and also three single bench judgments of that court in Smt. Hakmi vs. Pitamber (3), Manak Chand vs. Suresh Chandra (4) and Nikka Singh vs. Puran Singh (5 ). In my humble view, section 35 - B (1) was not introduced in the Code with the intention of cutting down the scope of the power conferred upon the court by the provisions of section 148 of the Code, under which the court could enlarge, in its discretion, any period fixed or granted by it fordoing of any act prescribed or allowed by the Code, even though the period originally granted might have expired. It should always be remembered that all rules of procedure are meant to be hand maids in the administration of justice. The provisions relating to procedure, in my humble view, should not be construed in such a manner as to defeat the interests of justice. In M/s Babber Sewing Machine Co. vs. Trilok Nath Mahajan (6) their Lordships of the Supreme Court, while referring to the application of O. 11. r. 21 C. P. C. observed ; - "it does not follow that a suit can be lightly thrown out or a defence struck out, without adequate reasons. The test laid down is whether the default is wilful. In the case of a plaintiff it entails in the dismissal of the suit and, therefore, an order for dismissal ought not be made under O. XI R. 21, unless the court is satisfied that the plaintiff was wilfully withholding information or refusing to answer interrogatories or by withholding the documents which he ought to discover. . . . . . . . . . . . . . . . . In the case of the defendant, he is visited with the penalty that his defence is liable to be struck out and to be placed in the same position as if he had not defended the suit. The power for dismissal of a suit or striking out of the defence under O. XI r. 21, should be exercised only where the defaulting party fails to attend the hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party. . . . . . . . . . . . . . . :. . . . . . . . . An order striking out the defence under O. XI r. 21 of the Code should, therefore, not be made unless there has been obstinacy or contumacy on the part of the defendant or wilful attempt to disregard the order of the court, and may be made use as a last resort. " A bare reading of the provisions of section 35 - B (1) C. P. C. goes to show that if the amount of costs is not paid on the date next following the date on which the order imposing such costs was passed, then such payment of 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 or the further prosecution of the defence by the defendant, in case the defendant has been ordered to pay such costs. The plaintiff may not be entitled to further prosecute the suit if he fails to make payment of costs awarded and the defendant may not be entitled to prosecute his defence further, in case of his failure to make payment of the amount of costs, but in either case the court is not precluded from extending the time fixed for payment of costs under Section 35-B (l) C. P. C. In Mahant Ram Das v. Gangadas (7) their Lordships of the Supreme Court observed as under: - "such procedural orders, though peremptory (conditional decrees apart) are in essence, interrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Pershians. Cases are known in which Court have moulded their practice to meet a situation such as this and to have restored a suit or proceedings, even though a final order had been passed. "
(3.) IN Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon (8) their Lordships of the Supreme Court observed as under; - "rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief mearly because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. " In Sangram Singh v. Election Tribunal Kotah (9) while referring to the procedural provisions of the Code of Civil Procedure, their Lordships of the Supreme Court observed as under:- "now a Code of procedure must be regarded as such. It is, 'procedure &, something designed to facilitate justice and further its ends, not a penal enactment for punishment and penalties, not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is do to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. " In Sri Kashi Biswanath Dev v. Parmananda Routrai (10) a learned Judge of the Orissa High Court dissented from the view taken by the majority of the learned judges constituting the Full Bench of the Panjab and Haryana High Court in Anand Prakash's case (Supra)& agreed with the view taken in the earlier Punjab and Haryana Cases referred to above. It was observed in Kashi Bishwanath Dev's Case (Supra) that the cause of justice was paramount and a procedural law cannot be raised to the pedestal of being such a mandatory provision as would take away the Court's right in a given case to exercise its discretion in the interests of justice. ;