Civil Revision No.257 of 2008 : 1 : Ajmer Singh Vs. Kailash Chand & another Present: Mr.Vikas Sagar, Advocate, for the petitioner. **** RANJIT SINGH, J.(ORAL) The petitioner is aggrieved against the order passed by the trial court declining his prayer for dismissing the suit in view of the contents of Section 35-B of the Code of Civil Procedure on the ground that the respondent-plaintiff failed to pay the cost by the due date and as such were not entitled to prosecute the suit any further. In support of his submission, the learned counsel has relied upon the Full Bench decision of this court in Shri Anand Parkash Vs. Shri Bharat Bhushan Rai and anr., 1981 P.L.R. 555. In this case, the Full Bench of this court has held that where the court gives adjournment by imposing cost and the party failed to pay the cost by the next date of hearing, it is mandatory on the court to disallow the prosecution of a suit or defence as the case may be. The facts in the present case, however, are slightly different. It is noticed by the trial court that respondent-plaintiff was burdened with cost of Rs.400/- on 7.2.2006 and this was payable on 17.3.2006. It is case of the petitioner that the cost was demanded on 17.3.2006, but inspite of demand, the plaintiff did not pay the same and as such has no right to prosecute the suit any further in terms of Section 35-B CPC and it was bound to be dismissed on that count. It Civil Revision No.257 of 2008 : 2 : seems that the case was adjourned to 4.4.2006 and then to 30.5.2006. The trial court has referred to the interim order dated 30.5.2006. On that day, the counsel for the defendant had stated that he was not ready to cross-examine the witness and instead filed an application for dismissal of the suit on the ground as afore- mentioned. It is noticed that the date for payment of cost was extended suo-moto and next date fixed was 30.5.2006. The learned counsel for the respondent-plaintiff, however, made a statement in the court that he was tendering Rs.40/- as a cost as ordered by the court on 7.2.2006 for payment to the defendant and his counsel. In the interim order dated 17.3.2006, it is noted in the presence of the counsel that the plaintiff undertakes that he will make the payment of the cost on the next date and in case he failed to pay the same, his evidence will be deemed to be closed. The request of the counsel for the respondent was allowed and the case was adjourned to 4.4.2006 for evidence of the plaintiff. In Shri Anand Parkash's case (supra) an adjournment was granted subject to payment of cost which the defendant refused to tender on the adjourned date. That situation does not arise in the present case. Full Bench in Anand Parkash's case (supra) further went on to observe that awarding cost is in the discretion of the court and once it is so exercised and the cost is not paid then consequential action is governed by word “shall” used in the section. It is further held by the Full Bench that where the costs are not paid as a result of circumstances beyond the control of the defaulting party, the court will be well within its jurisdiction to exercise power under Section 148 of the Code in favour of the defaulting party. Here the respondent-plaintiff has never refused to pay the cost Civil Revision No.257 of 2008 : 3 : to strictly attract the ratio of law laid down by the Full Bench referred to here-in-before. Once the court had granted opportunity to the respondent to deposit the cost by adjourning the case, it clearly appears to be acting under Section 148 CPC. This is also in line with the view taken by Full Bench of this court in Anand Parkash's case (supra) as referred above. To similar effect is the ratio of law laid down in Dinesh Singla Vs. Smt.Surekha Singla and another, 2002 (4) R.C.R.(Civil) 513 which is relied upon by the counsel for the petitioner. This is a case where case was adjourned subject to payment of cost and the cost was not paid on adjourned date. It is held that it would be mandatory to strike out defence and Court has not to record reasons. In this case also it is observed that it was open to the parties to plead circumstances which prevented them from paying the cost to take advantage of Section 148 CPC. This case is, thus, basically following the ratio of law laid down in Full Bench in the case of Anand Parkash (supra). In the present case, the counsel for the respondent- plaintiff was granted permission to deposit the cost by the adjourned date without much objection by the petitioner. Thus, the provision of Section 148 CPC would clearly come into play to enable the court to enlarge the period. As such the action of the trial court in declining the prayer of the petitioner would call for no interference. Dismissed. January 17, 2008 ( RANJIT SINGH ) ramesh JUDGE