B.L. Hansaria, J.
1. The question involved in this revision relates to the scope and effect of Section 35B of the Code of Civil Procedure. The question has arisen on these facts. A suit was filed by the petitioners seeking certain reliefs against the opposite parties. In that suit plaintiff No. 4 came to be examined on 15-6-1985. Her examination-in-chief was completed, but on the prayer of the defendants, the cross-examination was deferred to 20-7-1985. On that date the defendants prayed for adjournment of the case. Though the trial court was not fully satisfied about the bona fide of the prayer, none-the-less adjournment was granted on condition that the defendants shall pay adjournment cost of Rs. 200/- and adjourned the case till 24-8-1985. On that date, the defendant again prayed for adjournment. After noting that the defendants had not paid the adjournment cost awarded on the earlier date, the learned trial court thought that in view of the provision of Section 35B, there was no scope for allowing the defendants to cross-examine the plaintiffs witnesses. The trial court further felt that there was want of sincerity on the part of the defendants to proceed with the suit. Therefore, after hearing both the sides the petition was rejected and the defence was struck-off and the case was fixed on 1-10-1985 for arguments. On MO-1985, a prayer was made to allow the defendants to cross-examine the P W by stating that the cost awarded was very high and beyond the means of the defendants. It was further stated in the petition that the refusal of the prayer to cross-examine the PW had prejudiced the defendants and the interest of justice demanded that the order passed earlier be set aside. Opportunity was given to the plaintiffs to file objection to this petition which was duly filed Arguments were thereafter heard on the petition on 25-1-86 and by the impugned order passed on 7-2-1986 opportunity was allowed to the defendants to cross-examine the PW.
2. A perusal of the impugned order shows that in allowing the prayer of the defendants to cross-examine the PW, reliance has been placed on Prakash Narain v. Addl. District Judge, AIR 1981 All 120, wherein it has been held that in default of payment of cost, defence cannot be struck-off under Section 35B, and the defendant is only precluded from entering into his defence until the cost is paid. As per this decision, defence is not struck-off but is merely suspended. Recourse has also been taken in the impugned order to Section 153 of the Civil P.C. which has given power to the Court to amend any defect or error in any proceeding in a suit for the purpose of determination of real question or issue raised by or depending on such proceedings. The trial Court ultimately stated that the order dt/- 24-8-85 was set aside in exercise of inherent powers of the Court.
3. In assailing the impugned order, Shri Goswami has first submitted, and rightly, that there was no scope to invoke Section 153 of the Civil P.C. This is not contested by Shri Senapati. The next submission of Shri Goswami is that inherent powers was also not available to the Court to set aside the order of 24-3-85 inasmuch as the same would be contrary to the provisions contained in Section 35B. Now, it is a settled law that inherent power cannot be exercised against an express provision of the Code. It has, therefore, to be seen whether Section 35B prohibited recourse to the inherent power to grant the relief in question. Section 35B reads as follows :---
'35-B. Costs for causing delay -- (1) If, on any date fixed for the hearing of 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 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 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 group of defendants as have been ordered by the Court to pay such costs.
(2) The costs ordered to be paid under sub-sec. (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.'
The question is whether the provision in the aforesaid section prohibiting further prosecution of the suit or defence by the plaintiff, or the defendant, as the case may be, has to be taken as mandatory, or the same is directory. Shri Goswami has urged that the view taken in Prakash Narain, (AIR 1981 All 120) (supra) is not tenable and seeks to rely on the majority judgment in Anand Prakash v. Bharat Bhusan, AIR 1981 Pun & Har 269 (FB). Shri Senapati on the other hand contends that the view taken by the minority in this case should be accepted by this Court.
4. To come to a correct finding it would be useful to note as to why Section 35B found place in the Code. As is apparent from the heading of the section, it was thought proper that some cost should be awarded for causing delay. This matter received the attention of the Law Commission and it recommended that a new section, namely, Section 35B be added to the Code. Before giving its recommendations, the Commission solicited views by issuing a questionaire. After having gone through the replies, the recommendation of the Commission was as below : --
'We have taken into consideration the opinions expressed. We have come to the conclusion that while it may not be wise to have a rigid provision, it would be useful to give a discretion to the Court to take into account scuh delay. This should at least have the utility of focussing attention on this , aspect.'
The Commission, therefore, recommended that the following section should be inserted in the Code : --
'35-B. The Court may, while passing an order for costs, make the party responsible for delay with reference to any step in the litigation, pay the costs proportionate to that delay, whatever may be the ultimate event of the suit.'
While introducing the Code of Civil Procedure (Amendment) Bill, the recommendation was somewhatmodified, as the relevant clause inserted in the Bill read as below: --
''35B. While making an order for costs in a suit or proceeding, the Court may, for reasons to be recorded, require the party to the suit or proceeding who is responsible for delaying, without any reasonable excuse, any step in such suit or proceeding, to pay such costs, commensurate with the delay so caused, as it thinks fit, and the costs so required to be paid shall not be included in the costs awarded in the decree or order which is ultimately made in the suit or proceeding.'
What was stated in the Notes on Clauses about this insertion was as below : --
'Sometimes, a party, though successful in the litigation, is responsible for causing undue delay in respect of particular stages of the litigation. It is but fair that such delay should be taken into account while awarding costs. More often than not, solvent parties resort to dilatory tactics to cripple the opposite party. Instances are also not rare where a party with a bad case tries to delay the matter. In some other cases, the litigation is aimed at delaying the relief to which the opposite party is entitled. New Section 35B is, therefore, being inserted 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.'
After the matter was referred to the Joint Committee, the section took the form as it is to be found in the statute book. The report of the Joint Committee stated as below regarding this clause: --
'The Committee are of the opinion that in order to avoid delay in the disposal of suits, payment of compensatory costs for causing delay should be a condition precedent to the further prosecution of the suit or the defence by the plaintiff or defendant concerned The clause has been amended accordingly.'
5. From what has been stated above, it is clear that even the Joint Committee, on the basis of whose report mention was made in Section 35B about payment of cost being condition precedent for the further prosecution of the suit or defence, as the case may be, did not think of making this part of the section mandatory, which appears clear from the use of the word 'should' in this context.
6. Before analysing the language of the section to find out the scope and effect of the concerned provision, it would be useful to state that Section 35B is admittedly a procedural provision and in this connection we may note what was stated by the Supreme Court in State of Gujarat v. Ram Prakash, (1970) 2 SCR 875:-
'Procedure has been described to be a handmaid and not a mistress of law intended to subserve and facilitate cause of justice and not to govern or obstruct it. Like all rules of procedure this rule demands a construction which would promote this cause.'
Statement of Lord Penzances in Henry J.B. Kendall v. Peter Hamilton, (1879) 4 AC 504, may also to be borne in mind : --
'Procedure is but the machinery of the law after ail -- the channel and means whereby law is administered and justice reached It strangely departs from its proper office when in place of facilitating it is permitted to obstruct and even extinguish legal rights and is thus made to govern where it ought to subserve.'
7. With the aforesaid in mind, let it be seen as to what the legislature really intended when it stated what payment of costs as awarded 'shall be a condition precedent' to the further prosecution of the suit or defence, as the case may be. It has been submitted by Shri Goswami that the use of the word 'shall' along with the expression 'condition precedent' clearly reveals the mind of the legislature in requiring the payment of the costs as ordered on the date next following the date of such order as a pre-requisite for further prosecution of the suit or defence. It is, however, known that the mere use of the word 'shall' does not always make the provision mandatory. The question whether a particular provision of the statute which on the face of it appears mandatory, inasmuch as it uses the word 'shall' is really so cannot be resolved by laying down any general rule, and it depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor, as stated in R.B. Sugar Co.v. Rampur Municipality, AIR 1965 SC895. It was further observed in this case :--
'The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.'
The observations in Ganesh Prasad v. Lakshmi Narain, AIR 1985 SC 964 are more revealing, as both the words 'may' and 'shall' had been used in the same provision. The argument in this connection was that where the words 'may' and 'shall' both are used in the same provision, the legislative intendment is unmistakable that the provision where the word 'shall' is used must be held to be mandatory, because the previous use of the word 'may' shows that the legislature was conscious which part of the provision is to be directory and which other part is to be mandatory.
8. In advancing this proposition reliance was placed on a statement in Maxwell's Interpretation of Statutes, 12th Edition, Page 282, wherein it was stated that 'where the Legislature in the same sentence uses different words, we must presume that they were used in order to express different ideas'. Even so, the Court observed as follows : --
'Obviously where the legislature uses two words 'may' and 'shall' in two different parts of the same provision prima facie it would appear that the legislature manifested its intention to make one part directory and another mandatory. But that by itself is not decisive. The power of the court still to ascertain the real intention of the Legislature ' by carefully examining the scope of the statute to find out whether the provision is directory or mandatory remains unimpaired even where both the words are used in the same provision.'
The following passage finding place in Crawford on 'Statutory Construction' (Edn. 1940 Article 261, page 516) may also be noted : --
'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also while considering its nature, its design, and the consequence which would follow construing it the one way or the other.'
9. Now, if we have to read the relevant provision of Section 35B as mandatory leaving no discretion at all with the Court, great injustice may be caused to the plaintiff or the defendant in further prosecution of the suit or defence as the case may be. This would be so where the party fails to deposit the cost as awarded on the date next following due to circumstances beyond one's control, say, meeting with an accident on way to Court. It would be doing great injustice tosucha person if he were to be precluded from proceeding further with his suit or defence. The serious injustice which may follow from construing the provision as mandatory would, therefore, require that the provision may be read as directory. Non-leaving of any discretion in the matter with the court may cause great hardship and injustice in some cases.
10. The intention behind awarding of cost being to avoid delay in disposal of suits, this purpose has not much to do with the condition, that the cost must be paid on the date nexti following the date of imposition of the cost. The awarding of cost has no doubt relevance with the object of expediting the trial so that unnecessary adjournments are not sought for. But then the condition that it must be paid on the date next following the imposition of costs has not much to do with the underlying idea of avoiding delay. It would not, therefore, be acting against the intention of the legislature to regard the actual payment of the cost as being directory in nature instead of being mandatory. Of course, this does not mean that the payment as awarded by Court could be deferred unduly or that the cost would be paid at the pleasure of the party against whom the same has been awarded
11. Rule 21, Order 11 of the Code of Civil Procedure has a similar consequence, and the Supreme Court had occasion to deal with it in Babbar Sewing Machine Co. v. Trilok Nath. AIR 1978 SC 1436. That provision reads as follows : --
'21. Non-compliance with order for discovery -- (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, beliable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.
(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.'
As to this provision, it was stated in para 24 that it should be applied only when the default is wilful, and as a last resort the Court would dismiss a suit or strike out the defence when the party is guilty of such contumacious conduct or when there is wilful attempt to disregard the order of Court that the trial of the suit is arrested. This view was taken because a suit cannot be lightly thrown out, or a defence struck out without adequate reason. It was further stated that power under the aforesaid provision should be invoked where the defaulting party fails to attend to hearing or is guilty of prolonged or inordinate and inexcusable delay which may cause substantial or serious prejudice to the opposite party.
12. May it be pointed out here that merely because a provision is directory does not mean that it is not to be enforced by the courts. The distinction between a provision being mandatory or directory lies in the fact that in the former case no discretion is left with the court except to enforce the provision, whereas in the latter case, some amount of discretion is available to the court A statutory command cannot be ignored by Courts where the facts warrant application of t-he same. If, however, the provision be directory some play in joints is permissible, and in case of the present nature, the Court instead of acting as required by the section, may enlarge time by exercising its power under Section 148 of the Civil P.C.
13. A perusal of the Full Bench judgment in Anand Prakash v. Bharat Bhusan, (AIR 1981 Punj & Har 269) (supra) shows that though the majority regarded the provision as mandatory, it also visualised some situations where the provision may not be enforced This would be apparent from what has been stated in para 25 by Jain, J. : --
- 'However, it may be made clear that in case the act of non-payment of costs is not intentional and a wilful attempt to disregard the order of the Court, then the Court may not impose the extreme penalty on a delinquent.......... Such orders are in essence in terrorem so that the unscrupulous litigants may not indulge in dilatory tactics. They do not, however, completely estop a Court from taking note of events and circumstances which have happened before the payment is to be made.'
Sandhawalia, C.J., while agreeing with Jain, J., also stated : --
'However, where the costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power under Section 149 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction.'
14. The aforesaid observations of the majority would indicate that it was also prepared to give some power to the Court, of course, in exceptional circumstances, in not precluding the plaintiff or the defendant to further prosecute the suit or defend as the case may be. Thus, though the majority had stated that the provision is mandatory, in fact it is not so even according to it as would appear from the observations quoted above.
15. The legislative history, the intention. behind incorporation of the section in thej Code and the serious consequences which, may follow all tend to show that the provision! has to be regarded as directory. I would therefore say that the failure to deposit costs as awarded on the next following date should not in all cases prohibit further prosecution of the suit or the defence, as the case may be. This does not of course mean that the party against whom the cost is awarded should be given a long rope to keep the proceedings deferred until it is pleased to deposit the cost. The enlargement of time in this connection by exercising power under Section 148 of the Civil P.C. has to be granted only in cases where the Court is satisfied that the default is not wilful or the conduct of the party is not contumacious. To put it differently, the party awarding cost (sic) cannot be allowed to defeat the purpose of Section 35B by acting negligently or contumaciously.
16. The aforesaid view taken by me is in line with what was stated in Sri Kashi Biswanathv. Paramananda, AIR 1982 Orissa 80, and by Saikia, J. (as he then was) in Basudeo Sarma v. Umesh Chandra, (1983) 2 Gauhati LR NOC 17.
17. It deserves to be pointed out that what Section 35B precludes is the further prosecution of the suit by the plaintiff or defence by the defendant, as the case may be. This is different from saying that the suit would be dismissed or defence would be struck-out which situations have been visualised only by Order 11, Rule 21 of the Code.'
18. Let us now see whether the present was a case where the Court below had acted in excess of its jurisdiction in giving further opportunity to the defendant to cross-examine the concerned PW. A perusal of the Order Sheet shows that after an order of striking out of defence was passed on 24-8-85, the defendant did deposit a sum of Rs. 200/- on 1-10-85 (which was paid back after a few days for reasons not known) on which date a formal petition was also filed to permit the defendant to cross-examine the PW. The default cannot, therefore, be regarded as wilful or so much-contumacious as to require an order, prohibiting the defendant from proceeding further with his defence. Though the impugned order has been passed with the aid of S, 153 of the Civil P.C. and though Section 153 cannot have any application, I do not think if the Court below had acted beyond its jurisdiction by enlarging time as the Court did have the power to do so under Section 148 of the Code. As the impugned order has occasioned no failure of justice also, no case has been made out to exercise revisional power of this Court to interfere with the same.
19. For the reasons aforesaid, the petition is dismissed.