1 2026:HHC:14305 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 184 of 2026 Decided on: 30.4.2026 Kulbhushan Sharma … Petitioner Versus Canara Bank & ors. …Respondents _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ___________________________________________________ For the Petitioner: Mr. G.R. Palsra, Advocate. For the Respondent : Ms. Jyoti Chauhan, Advocate vice Mr. Sanjay Dalmia, Advocate, for respondent No. 1. Virender Singh, Judge (oral) Notice confined to respondent No. 1. Ms. Jyoti Chauhan, Advocate appears and waives service of notice on behalf of respondent No. 1. 2. Petitioner Kulbhushan Sharma, has filed the present petition, under Article 227 of the Constitution of India, against the order dated 26.2.2026, passed by the Court of learned Senior Civil Judge, Mandi, H.P. (hereinafter referred to as ‘the trial Court’), in Civil Suit 2 2026:HHC:14305 No. 95 of 2021, titled as, ‘Canara Bank versus M/s K.B. Trading Co. & others’. 3. By way of order dated 26.2.2026, the learned trial Court has closed the evidence of the petitioner. 4. For the sake of convenience, parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court. 5. As per the documents annexed with the petition, plaintiff Canara Bank has filed a suit for recovery of Rs. 1607793/-, alongwith interest @ 10.45% per annum, as calculated upto 31.7.2021. In the said suit, three partners of defendant No. 1, alongwith guarantor, have been impleaded as defendants. 6. As per the zimni orders, annexed with the petition, issues were framed vide order dated 20.5.2023, and vide order dated 23.5.2024, evidence of the plaintiff has been closed. Thereafter, the matter has been listed for DWs on 9.7.2024. On that date, the matter was fixed for 25.9.2024, on the ground that the Presiding Officer was on leave. Thereafter, the defendants have not opted to put appearance, as such, Court notices were issued. 3 2026:HHC:14305 Thereafter, the defendants, through their counsel, put appearance on 20.5.2025. On that date, the matter was adjourned for 12.8.2025, for DWs, subject to last opportunity. Despite last opportunity, two more last opportunities were granted to the defendants to lead evidence, and on 23.12.2025, learned trial Court has passed the following order: “No DWs present. Again time prayed for DWs. Exceptional last opportunity is hereby granted for DWs subject to payment of costs of Rs. 1000/- to be deposited in the “Chief Justice Disaster Relief Fund” established by the Hon’ble High Court of H.P.. Put up on 26.2.2026.” 7. Thereafter, on 26.02.2026, again neither DWs were present, nor defendants have deposited the costs, so imposed. Thereafter, the learned trial Court has closed the evidence by holding that sufficient opportunities to lead defence evidence has already been granted. 8. Now, one of the defendants, i.e. Kulbhushan Sharma, is before this Court, by way of this petition. The impugned order has been challenged, mainly on the ground that the plaintiff has taken many opportunities 4 2026:HHC:14305 for leading evidence and evidence of the defendants was closed only on 4th occasion. As such, a prayer has been made by learned counsel for defendant Kulbhushan Sharma (petitioner) that one more opportunity be given to the defendants to lead evidence. 9. The prayer, so made in the application, has been opposed by Ms. Jyoti Chauhan, learned vice counsel appearing for respondent No. 1, on the ground that sufficient opportunities have been granted to the defendants to lead evidence. 10. As stated above, the learned trial Court has given four opportunities to the plaintiff to lead evidence and closed the evidence. Thereafter, five effective opportunities were granted to the defendants to lead evidence. But, neither steps had been taken for summoning the DWs, nor, DWs were present. Even, the costs, which had been imposed on 23.12.2025, has not been deposited. 11. In this background, this Court is of the view that the learned trial Court has rightly passed the order dated 26.2.2026 by closing the evidence of the 5 2026:HHC:14305 defendants. Admittedly, defendants have also not deposited the costs, as imposed vide order dated 23.12.2025. The learned trial Court has imposed the costs, under Section 35 B of the Code of Civil Procedure, as a condition precedent, to lead evidence, that too, subject to last opportunity. Provisions of Section 35 B of the CPC, are reproduced, as under: “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 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 6 2026:HHC:14305 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.” 12. The learned trial Court, in the present case, has closed the evidence of the defendants on the ground of non-payment of costs, as well as, on the ground that despite five effective opportunities, including exceptional last opportunity, they have not led evidence. The learned trial Court has rightly closed the evidence of the defendants. The said order does not require any interference, that too, under Article 227 of the Constitution of India, where the scope of interference is very limited. 13. When, the costs have been imposed under Section 35 B of the CPC, then, the order passed by the learned trial Court, does not require any interference, in view of law laid down by Full Bench of Hon’ble Punjab & Haryana High Court, in case titled as, ‘Anand Parkash versus Bharat Bhushan Rai & Anr.’, reported in AIR 1981 P&H 269. Relevant paragraphs 22 and 33 of the judgment are reproduced as under: “22. It was contended by Mr. Goel, learned counsel for 7 2026:HHC:14305 the respondent, that though word 'shall' has been used in the Section but by user of that word the power of the Court for granting more time for paying the costs is not taken away. I am afraid, I am, unable to agree with the contention of the learned counsel for the respondent. There might have been some merit in the contention of Mr. Goel if the word 'shall' had been used alone as in that event the judgment cited for the proposition that mere use of word 'shall' may not make a statute mandatory, would have been of some relevance. But in the instant case, a bare scrutiny of the provisions of Section 35B would show that the Legislature had made its intention absolutely clear and beyond the pale of any doubt that the provision are mandatory in nature and any non-compliance with the same would result in penal consequences as envisaged therein. When the provision of Section 35B are analysed we find that the Legislature was not satisfied by using the word 'shall' only and this word shall' in the Section is qualified by the words 'condition precedent'. Where a statute declares that doing of a particular thing shall be a condition precedent, then obviously the intention is to make it a peremptory mandate. A condition precedent is a condition which must be performed, if the Legislature had not intended to make the provisions of the Section mandatory, then it was not at all necessary for the Legislature to have qualified the word 'shall' by using words 'condition precedent'. The Legislature has made its intention absolutely clear by using the words 'shall be a condition precedent' that the provision of this section are mandatory in nature and that any non- compliance of these provision would be fatal. To me the words 'condition precedent' qualifying the word ' shall' 8 2026:HHC:14305 appear to be the clincher for interpreting the provisions of Section 35B are mandatory. As has been observed earlier the costs are ordered to be paid to compensate the other party who for no fault of his has to undergo inconvenience and incur expenses. If an adjournment is sought and the same is granted on payment of costs, then on the next date of hearing the party who sought adjournment, is bound to pay the costs. In my view, on the plain language of the section the Court is only required to see whether the costs have been paid or not and if a party does not pay the costs. Then the only course open to the Court is to disallow the prosecution of the suit or the defence any further. The Court would not go into the question whether the party who sought adjournment has or has not been guilty of delaying the suit or that it was not useful for the party to lead evidence or that the adjournment sought was unnecessary. When a party seeks adjournment, he pays the costs for his own folly or mistake which results into inconvenience and unnecessary harassment of the other side. He does not do so as an act of benevolence. Moreover, a litigant is excepted to show full respect to the words of the Court, he cannot be permitted to ignore them or flout them with impunity. In case he opts to disregard the orders of the court and fails to pay the costs, then he must suffer penal consequences. The duty of paying costs is on the party who has been ordered to pay the costs. The Court or the party who has to receive costs, is not obliged to remind this delinquent party to perform its duty. The whole purpose of enacting this provision would be frustrated if the same is held to be directory. It may again be emphasised that the Courts are not required to find out 9 2026:HHC:14305 as to what was the intention of the party in obtaining adjournment as the moment as adjournment is obtained on the date on which a suit is fixed for hearing or for taking any step therein, then the same results in the delay of the decision of the suit. One of the essential requirements for attracting the applicability of this provision is that the date has to be when a suit is fixed for hearing or for taking any step therein. If the date is only for depositing of process fee or for doing some such act; then it cannot be said that the suit was fixed for hearing or for taking any step therein. When once the ingredients of the Section are proved, then no other extraneous consideration would be taken into account by the Courts. (self emphasis supplied) xxx xxx xxx 33. In accordance with the majority decision it is held that in the event of the party failing to pay the costs on the date next following the date of the order imposing costs, it is mandatory on the Court to disallow the consideration would weigh with the Court in fenere as the case may be and that the delinquent party. However, where the costs are not paid as a result of the circumstances beyond the control of the defaulting party. Then Section 148 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction.” (self emphasis supplied) 14. Learned counsel for the defendant-petitioner could not satisfy the judicial conscience of this Court as 10 2026:HHC:14305 to how the learned trial Court has erred in exercising the jurisdiction, vested in it. 15. In view of the discussions made above, this Court is of the view that the learned trial Court has rightly passed the order dated 26.2.2026, by virtue of which, the evidence of the defendants has been closed, since, neither the DWs were present, nor, the costs of Rs. 1000/-, have been deposited, despite exceptional last opportunity. 16. Considering all these facts, there is no substance in the petition, and the same is accordingly dismissed. 17. The parties to the lis, through their counsel, are directed to appear before the learned trial Court, on 7.5.2026, at 10:00 a.m. 18. The pending application(s), if any, are also disposed of. (Virender Singh) 30.4.2026 Judge Kalpana