Judgment:
V.K. Jhanji, J.
1. Petitioners filed suit for declaration. The suit was contested by the respondents. After framing of the issues, the case was fixed for 9th February, 1982 for the evidence of the parties. On 9th February, 1982, evidence was not present and, therefore, counsel for the parties sought adjournment. Case was adjourned to 30th March, 1982 for the evidence of the plaintiff subject to payment of costs of Rs. 25/-. On 30th March, 1982 one PW was recorded. However, zimni order does not show that the costs awarded on 9th February, 1982 were paid or not. In the zimni order, there is no indication also whether defendants or their counsel pressed for payment of costs or not. The case was consequently adjourned to 14th June 1982 for the remaining evidence. On 14th June 1982 remaining evidence was not present. Case was adjourned to 30th August, 1982, on payment of costs of Rs 30/-. On 30th August, 1982 costs awarded on 14th June, 1982, were paid. However, on that very date that is on 30th August, 1982, defendants filed an application praying therein that the suit be dismissed under section 35B as the plaintiff did not pay costs awarded on 9th February, 1982. Application on contest, was allowed and the suit was consequently dismissed under section 35B by the trial Court. This order is being impugned here in this civil revision.
2. After hearing the learned counsel for the parties, I am of the view that this revision deserves to succeed.
3. In the present case, as already noticed, on 30th March, 1982 the issue as to payment of costs awarded on 9th February, 1982 was not raised by either of the parties nor taken notice of by the Court, In my view, thereafter an any subsequent date the same could not be raised or that section 35B will continue to apply with all its rigorous. The Statutory object in making express provision that lies in section 35B is to secure the prosecution of the matter and not to punish the party against whom costs were awarded. It is not to enable the party to make a gain or profit out of the litigation by having costs. The defendants having waived their right by not raising the question of payment of costs on the next date of hearing, cannot be allowed to agitate or make grievance for the same on any subsequent date.
4. Consequently, the impugned order cannot be sustained and the same is hereby set aside. The civil revision is allowed. No costs.
5. The trial Court is directed to decide the suit on merits in accordance with law.
6. Parties through their counsel are directed to appear before the trial Court on 30th September, 1992.