Civil Revision No. 2313 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2313 of 2009 (O&M) Date of decision: 08.01.2010 Chajju Ram ....Petitioner Versus Firm M/s Vinay Kumar Neeraj Kumar, Katla Bazar, Rewari ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. H.S. Grewal, Advocate, for the petitioner. Mr. J.P. Sharma, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) CM No. 9936-CII of 2009 Allowed. The applicant-petitioner is exempted from filing certified copies of Annexures P-1 to P-4. CR No. 2313 of 2009 This revision petition is directed against the trial Court order and appellate Court order, vide which the application moved by the petitioner, for setting aside the order dismissing the suit for non- prosecution, was ordered to be dismissed. The plaintiff/petitioner filed a suit for permanent injunction, seeking restraint order against the defendant from recovering, the amount from the plaintiff/petitioner to enforce his liability, as a guarantor for defendant No.1. The petitioner failed to lead evidence in spite of availing Civil Revision No. 2313 of 2009 (O&M) -2- number of opportunities. Thereafter the petitioner was granted adjournment on payment of costs. The petitioner neither led evidence nor paid the costs. Therefore, the learned Court ordered dismissal of the suit for non-prosecution. The plaintiff/petitioner thereafter moved an application for setting aside that order after expiry of the period of limitation, the explanation given for condoning the delay was not accepted by the learned trial Court, and it was held that no ground was made out to recall the order dismissing the suit for non-prosecution. The plaintiff/petitioner preferred an appeal. The appeal was dismissed, primarily on the ground that as the petitioner, had failed to pay the costs imposed by the Court though demanded, there was no alternative with the learned trial Court but to strike off the defence of the plaintiff/petitioner. The learned counsel for the petitioner contends, that the impugned order deserves to be set aside, for the reason that the petitioner by seeking, the setting aside of order, was only claiming to contest the suit on merits and was also willing to pay the costs, which could not be paid earlier for the reasons beyond his control. The learned Courts below, therefore, were not justified in dismissing the application. It is further the contention of the learned counsel for the petitioner, that the plaintiff being a favoured-debtor being a guarantor, was liable to be treated with compassion and the application moved by him should have been allowed. On consideration, I find no force in the contentions raised by Civil Revision No. 2313 of 2009 (O&M) -3- the learned counsel for the petitioner. Once, it is not disputed that in spite of availing number of opportunities, the petitioner had failed to lead any evidence and had also failed to pay the costs, the learned Courts below were bound by the statute to strike off the defence of the petitioner. It is established law, that Section 35-B of the Code of Civil Procedure is mandatory in nature. Rigor of Section can be avoided only if the costs are not demanded by the opposite party, but if the costs are demanded, the Court has no option but to strike off the denfence of the defaulting party, that is what has been done in the present case. Finding of the learned Courts below, that no sufficient cause was shown for recalling the order, can also not be said to be perverse, as the plaintiff/petitioner failed to prove good and sufficient cause for delay in filing the application, which was barred by limitation. No ground is made out to interfere with the order passed by the learned Courts. No merit. Dismissed. (Vinod K. Sharma) Judge January 08, 2009 R.S.