C.R.No.172 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.172 of 2009. Decided on August 31, 2009. Hari Ram .. Petitioner VERSUS Sita Ram and others .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI PRESENT Mr.P.R.Yadav, Advocate, for the petitioner. Mr.Vinod S. Bhardwaj, Advocate, for respondent No.11. Mr.Navneet Singh, Advocate, for respondent No.13. M.M.S. BEDI, J. (ORAL) Plaintiff has filed this petition against the dismissal of his suit under Section 35-B of the CPC, for not paying the costs of Rs.3,000/- imposed upon him while dismissing his application for amendment of plaint and another costs of Rs.3,000/- imposed while dismissing the application for sending certain documents to FSL, Madhuban. It is not out of place to observe here that the case was at the stage of production of rebuttal evidence and for arguments when . . . 1 C.R.No.172 of 2009 it was dismissed vide impugned order dated 21.12.2007. I have heard counsel for the petitioner and counsel for the respondents. Counsel for the respondents have contended that since decree has been passed after dismissal of the suit under Section 35-B of the CPC, on account of non-payment of costs, the petitioner should have filed an appeal. I do not find any force in the said contention as the case of the plaintiff-petitioner has not been decided on merits and the order passed under Section 35-B of the CPC, dismissing the case for non-payment of costs is not appealable under Order 43 Rule 1 CPC, and a decree need not have been prepared after dismissal of the suit in this case as the dismissal of suit for non-payment of costs will not entail preparation of decree under Section 2(2) CPC. Section 35-B was incorporated in the year 1976 in CPC, to give to the Court a discretion to impose compensatory costs on parties who are responsible for delaying any stage of the litigation and such costs, would be irrespective of the ultimate outcome of the litigation. Section 35-B CPC, reads as follow :- “35B. 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 . . . 2 C.R.No.172 of 2009 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 defendant, 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-section (1) shall not, if paid, be included in the costs 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.” A perusal of Section 35-B(2) of CPC indicates that . . . 3 C.R.No.172 of 2009 in case of non-payment of costs, the costs awarded can be included in the decree passed in the suit. It is also provided therein that if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the name and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons. In view of the stage of the case, the trial Court ought to have taken into consideration the fact that the case was at arguments stage but instead of adjudicating the matter on merits, it opted to dismiss the suit for non-payment of costs without taking into consideration the provisions of Section 35-B (2). In view of the above circumstances, the impugned order dated 21.12.2007, is set aside. The parties are directed to appear before the trial Court on 19.09.2009. The suit will be decided within a period of one month after 19.09.2009. So far as unpaid costs by the plaintiff- petitioner are concerned, the trial Court will pass an appropriate order, in view of the statutory provisions under Section 35-B(2) of CPC. Disposed of. (M.M.S.BEDI) JUDGE August 31, 2009. rka . . . 4