Whether S 35 B of CPC is mandatory or directory?

 After considering all the aforesaid Authorities, with due respect to the Punjab & Haryana High Court, I am not inclined to accept the view taken by that Court. The Rules of Procedures are meant to be the handmaiden of justice to further the cause of justice. The party in a given case may have a very valid ground to explain why it could not pay the costs on the next date. The Court must always have a discretion to examine whether the reasons put forth by the party are valid or not. Section 148, CPC empowers a Court to extend time in any matter. This power would be set at naught if it is held that the provisions of Section 35B, CPC are mandatory and that the Court would have no option but to stop the further prosecution of the suit by the plaintiff or strike off the defence of the defendants in case of non-payment of costs. I am in agreement with the reasoning given by the Orissa, Patna, Gauhati and Rajasthan High Courts and consequently I hold that the provisions of Section 35B, CPC are not mandatory but are only directory. The Court may in the absence of the concerned party, or in the absence of any plausible explanation for non payment of costs pass an order stopping the further prosecution of the case by the defaulting party. However, the Court, in some circumstances, may not pass such an order. {Para 12}

IN THE HIGH COURT OF HIMACHAL PRADESH

Decided On: 27.06.2008

Piaro Devi Vs. Anant Ram and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation: MANU/HP/0122/2008,AIR 2008 HP 107.

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