Section 35B CPC: Costs for Causing Delay
Section 35B of the Code of Civil Procedure, 1908 empowers a civil court to award costs against a party responsible for delaying proceedings. It also makes payment of those costs a condition for further prosecuting the suit or defence, subject to the court's limited power to extend time.
Meaning and purpose of Section 35B
The provision addresses avoidable delay in civil litigation, including failure to take a required procedural step and obtaining an adjournment. Its principal purpose is to reimburse the other party for reasonable expenses of attending court on the wasted date, while discouraging unnecessary postponements.
Section 35B CPC: Statutory provisions explained
Sub-section (1): When costs may be ordered
Clause (a): A party fails to take a step required by or under the CPC on the date fixed for hearing or for taking that step.
Clause (b): A party obtains an adjournment to take that step, produce evidence, or on another ground.
In either situation, the court may, for reasons recorded, direct that party to pay the other party an amount reasonably sufficient to reimburse expenses incurred in attending court on that date.
Condition precedent: Payment on the next date following the costs order is a condition precedent to further prosecution of the suit by the plaintiff, or of the defence by the defendant, as applicable.
Explanation: Where defendants or groups of defendants raise separate defences, this condition applies to the defendant or group specifically ordered to pay costs.
Sub-section (2): Treatment and recovery of costs
Costs paid under sub-section (1) are not to be included again in the costs awarded in the final decree. If unpaid, a separate executable order must be drawn up stating the amount and the names and addresses of those liable to pay.
For the complete enacted wording, including any relevant local amendments, consult the official India Code text of the CPC (PDF).
How Section 35B operates in practice
- The court identifies a missed procedural step or adjournment that caused delay.
- It records reasons and assesses reasonable attendance-related expenses of the other party.
- The defaulting party is ordered to pay the specified costs, ordinarily by the next hearing date.
- If payment is not made, the defaulting party cannot continue prosecuting the suit or defence unless the court validly extends time.
- Unpaid costs can also be recovered through the separate executable order contemplated by sub-section (2).
What happens if delay costs are not paid?
In Manohar Singh v. D.S. Sharma and Another (13 November 2009), the Supreme Court clarified that Section 35B does not automatically require dismissal of a plaintiff's suit or striking out of a defendant's defence followed by a decree. Rather, the party in default loses the right to participate further by leading additional evidence or addressing arguments; the court proceeds to decide the matter according to law.
The Supreme Court also recognised that Section 148 CPC, which concerns enlargement of time fixed or granted by the court, permits an extension for payment in exceptional circumstances and on appropriate terms. Such extensions should not be routine because the costs were imposed to address delay in the first place.
Read the Supreme Court judgment in Manohar Singh v. D.S. Sharma (official PDF).
Related CPC provisions
Section 35 CPC: General discretion of the court concerning costs of and incidental to suits.
Section 35A CPC: Compensatory costs in respect of false or vexatious claims or defences, subject to statutory requirements.
Order XVII Rule 1 CPC: Regulates adjournments and requires reasons to be recorded when time is granted, subject to its terms and applicable amendments.
Section 148 CPC: Governs enlargement of time fixed or granted by a court for doing an act prescribed or allowed by the CPC, subject to its statutory terms and judicial interpretation.
Frequently asked questions
Is the award of costs under Section 35B automatic?
No. The court has discretion whether to order costs, but must record reasons when exercising that power under the provision.
Must costs be paid at the next hearing?
Ordinarily yes. Payment on the next date is the statutory condition for continuing the suit or defence. The court may extend the time in exceptional circumstances under Section 148 CPC.
Does non-payment automatically dismiss the suit?
No. The Supreme Court has held that Section 35B restricts further participation by the defaulting party; the case must still be decided according to law.
Can unpaid Section 35B costs be executed?
Yes. Sub-section (2) requires a separate executable order identifying the amount and persons liable.
Official legal sources
India Code: Code of Civil Procedure, 1908 (official statute PDF)
Supreme Court of India: Manohar Singh v. D.S. Sharma (judgment PDF)
This article provides general legal information. State amendments, High Court rules and case-specific orders may affect procedure.