S. K. Agarwal ( 1 ) THIS order will dispose of application under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure (for short "code of Civil Procedure") for review of order dated 23/01/2001 by which earlier application (LA. No. 6464 / 2000) under Order 47 Rule 1, Code of Civil Procedure of the applicant seeking review of order dated 19/01/2000, restoring the suit was dismissed. ( 2 ) FACTS necessary for disposal of this application are that the plaintiff filed a suit for rendition of accounts of dissolved partnership regarding premises on plot no. 97, Panchsheel Park, New Delhi in July, 1977. The defendant died in July, 1997 leaving behind his wife/son, four daughters and two children of the deceased daughter as his legal heirs/legal representatives (hereinafter REFERRED TO to as l. Rs. 1 to 7 ). Plaintiff moved an application (I. A. No. 9333/97) under Order 22 Rule 4, Code of Civil Procedure for bringing on record L. Rs. of the defendant, as the right to sue survived. Notice of the application was issued to the proposed L. Rs. On 19/01/1998, Mrs. Harvinder Kaur (L. R.) appeared on her behalf and on behalf of her sister Mrs. Tavinder Kaur. Copy of the application was supplied to her. Notices to the unserved l. Rs. were issued and the matter thereafter was adjourned from time-to-time. They remained unserved and on 9/11/1998 fresh notice for 22/02/1999 was issued for service on unserved L. Rs. , subject to the payment of Rs. 1,000. 00 to be deposited with Delhi Legal Aid Services Authority. The plaintiff failed to deposit the costs and to take steps to serve the unserved L. Rs. , on- 2/11/1999, the suit was dismissed under Section 35-B, Code of Civil Procedure. It was ordered : "none is present nor cost of Rs. 1,000. 00 imposed earlier has been paid since november, 1998. The plaintiff cannot be allowed to prosecute the suit. The suit is accordingly dismissed in view of the provision of Section 35-B of the Code of civil Procedure. It was ordered : "none is present nor cost of Rs. 1,000. 00 imposed earlier has been paid since november, 1998. The plaintiff cannot be allowed to prosecute the suit. The suit is accordingly dismissed in view of the provision of Section 35-B of the Code of civil Procedure. " ( 3 ) ON the same date, i. e. 2/11/1999, plaintiff moved an application for restoration of the suit (I. A. No. 11011 /99) under Order 9 Rule 4 read with Section 151, Code of Civil Procedure pleading that the Counsel for the plaintiff was under wrong impression that the case was listed in Court No. 22 and he was waiting there. When he realised the mistake, and came to the Court, where the suit was listed and he was informed that the suit was already dismissed. However, when his restoration application came up for hearing on 3/11/1999, then he came to know that the suit was dismissed for non-payment of costs under Section 35-B, Code of Civil Procedure and was not dismissed in default. This application was adjourned to 19th January, 2000. On that day ( 3/11/1999), the plaintiff deposited the costs of Rs. 1,000. 00 with Delhi Legal aid Services Authority. The plaintiff also filed another application (I. A. No. 11351 / 99) under Section 148 read with Section 151, Code of Civil Procedure for re-calling the order dated 2/11/1999 dismissed the suit and for enlargement of time to deposit the costs up to the date of tiling of the application. Original receipt of payment of costs was also filed. It was pleaded that the plaintiffs application for bringing on record the l. Rs. of the deceased-defendant was stilling pending disposal, Ms. Kamlesh mahajan, who used to work with the Counsel invariably used to appear in the Court of Joint Registrar. Neither the plaintiff nor his Counsel knew about the costs having been imposed. It was pleaded that since the other party (proposed L. Rs.) were not appearing, so the rigour of Section 35-B, Code of Civil Procedure could not be attracted. The application came up for hearing on 16/11/1999. Notices were ordered to be issued for 1/12/1999 through registered post, ordinary process, as well as Dasti. Notices were sent by registered post to all the L. Rs. and were also served Dasti on mrs. Praveen Kaur, Mrs. Harvinder Kaur and Mrs. The application came up for hearing on 16/11/1999. Notices were ordered to be issued for 1/12/1999 through registered post, ordinary process, as well as Dasti. Notices were sent by registered post to all the L. Rs. and were also served Dasti on mrs. Praveen Kaur, Mrs. Harvinder Kaur and Mrs. Tavinder Kaur, who are residing at Delhi. None appeared on behalf of the proposed L. Rs. on 1/12/1999 and on llth January, 2000 when matter was adjourned to 12/05/2000. ( 4 ) IN the meantime, case was listed on 19th January, 2001 as the earlier application of the plaintiff (I. A. No. 11011/99) moved under Order 9 Rule 4, Code of Civil Procedure was adjourned for this date. Other I. A. No. 11351/99 was also shown in the list. None appeared on behalf of the proposed defendants /l. Rs. Taking into consideration that the costs have already been deposited, original receipt was on record, the order dismissing the suit was re-called, both the applications were disposed of. Fresh notice for service on the proposed L. Rs. of the defendant was ordered to be issued for 3/05/2000. Thereafter on about 17/02/2000 "the defendant" filed an application (IA No. 6464/2000) under Order 47 Rule 1, Code of Civil Procedure for re-calling the order dated 19th January, 2000 restoring the suit. None appeared on behalf of the defendant-applicant on 27th September, 2000,19th December, 2000, 5/01/2001 and on 23/01/2001. The review application was dismissed. Now the defendant-applicant has filed above-noted application for review (I. A. No. 1921 / 2000) and for re-calling the order dated 23/01/2001 dismissing the earlier review application. Plaintiff has filed the reply opposing the application -. I have heard the learned Counsel for the parties and have been taken through the record. ( 5 ) LEARNED Counsel for defendant-applicant argued that plaintiff did not take steps to serve proposed L. Rs. in his application (I. A. No. 9333/97) despite several opportunities. He did not deposited the costs of Rs. 1,000/- with the "delhi Legal aid Services Authority" as ordered on 9/11/1998 and the suit was rightly dismissed on 2/11/1999 under Section 35-B, Code of Civil Procedure. Costs could not be deposited in the dismissed suit and the only course open to the plaintiff was to file an appeal against the order. Learned Counsel for plaintiff argued to the contrary. 1,000/- with the "delhi Legal aid Services Authority" as ordered on 9/11/1998 and the suit was rightly dismissed on 2/11/1999 under Section 35-B, Code of Civil Procedure. Costs could not be deposited in the dismissed suit and the only course open to the plaintiff was to file an appeal against the order. Learned Counsel for plaintiff argued to the contrary. In order to appreciate the rival contentions, it is necessary to refer to Section 35-B, code of Civil Procedure which reads: "35b. (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 suchparty 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 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. Explanationwhere 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 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. " ( 6 ) MERE reading of the above section would show that it provides for award of compensatory costs by one party to the other in the suit, to discourage the party to litigation from causing undue and unnecessary delay in the prosecution of the suit. The payment of costs is the plainly one in favour of the individual litigant for reimbursing the other party in respect of the expenses incurred by him, in attending the Court on the date. The payment of such costs on the date next fixed as the condition precedent for further prosecution of the suit or the defence as the case may be. It being a penal provision has to be construed strictly. In this regard, it would be useful to refer to the observations made by the Full Bench in Prem Sugar and Others v. Phul Chand and Others, AIR 1983 Punjab and Haryana 385. It was held : "as was observed in Anand Parkash s case (supra) such orders are in essence in terrorem, so that the unscrupulous litigant may not indulge in dilatory tactics. It calls for pointed notice that even here the result is not automatic and as held by the Full Bench a discretion still remains with the Trial judge under Section 148 of the Civil P. C. to exercise his power in favour of the defaulting party. Therefore, if on the date next following the date of the order of payment of costs the issue is not raised by either of the parties or taken notice of by the Court, it cannot be said that there after on all or any subsequent date the same can be resuscitated or that section 35-B would continue to apply with nil its rigour thereafter as well. Indeed it seems inevitable that if on the crucial date fixed for the payment of costs the question is not raised at all, then impliedly a waiver of the right arising in favour of the party entitled to costs would necessarily follow. Therefore, on subsequent dates it would not be open to the parties to reopen the issue at their will and seek the barring of the further prosecution of the suit or the defence under Section 35-B afresh. It is axiomatic that the law is for the vigilant and not for those who blissfully sleep over their rights. Therefore, on subsequent dates it would not be open to the parties to reopen the issue at their will and seek the barring of the further prosecution of the suit or the defence under Section 35-B afresh. It is axiomatic that the law is for the vigilant and not for those who blissfully sleep over their rights. " ( 7 ) IN this case as noticed above, the plaintiff s application for bringing on record the L. Rs. of the deceased defendant was pending adjudication. No reply was filed by the L. Rs. , who had appeared on 19/01/1998. None of the proposed l. Rs. were present on any date even after imposition of the costs, strictly speaking the question of compensating the other party, who was not appearing did not arise. The costs to be deposited with the Delhi Legal Aid and Services Authority is not envisaged by Section 35-B, Code of Civil Procedure. This order was in the nature of an order under order 9 Rule 2, Code of Civil Procedure which provides for dismissal of the suit where summons/ notices have not been served in consequence to the plaintiff s failure to pay Court fee or the postal charges chargeable for such service. The Supreme Court in Ganesh prosed v. Laxmi Narayan, AIR 1985 SC 964 , held that when the Court fixes a time to do a thing, it always retains the power to extend the time for doing so under Section 148, Code of Civil Procedure. This also finds support from the observations made Arvind Construction co. and Ors. v. U. O. I, and Ors. , 38 (1989) DLT 129 and Raj Kishore Guptav. Shyanti devi and Another, AIR 1989 Pat 21 . In view of the above, I do not find any merit in the contention that the costs could not be deposited in the dismissed suit; that the court had no jurisdiction to extend the time and that the plaintiff ought to have filed an appeal. ( 8 ) LEARNED Counsel for plaintiff next argued that any order restoring the suit could not have been passed without service of notice on the proposed L. Rs. and that on 19th January, 2000 when the suit was restored, the application I. A. No. 11351 / 99 was not fixed for hearing and only I. A. No. 11011/99 was fixed. I am unable to agree. and that on 19th January, 2000 when the suit was restored, the application I. A. No. 11351 / 99 was not fixed for hearing and only I. A. No. 11011/99 was fixed. I am unable to agree. The suit was dismissed on account of the plaintiff s failure to pay the Court- fee or other charges etc. The suit was dismissed in the absence of the defendant, or the proposed L. Rs. / who have yet not appeared, in application for restoration of the suit by the plaintiff, it was not necessary to issue notice. Reference in this regard can be made to the observations made by this Court in V. Bhagat v. Usha Bhagat, AIR 1987 Delhi 74 and Binod Kumar Agarwala and Another v. Mst. Satyabhama Debi, AIR 1988 0rissa 44. ( 9 ) HOWEVER, in this case notices of the application for restoration of the suit were served by registered post as well as Dasti for 1/12/1999, on which date the proposed L. Rs. did not appear. Plaintiff was directed to place on record service report of the L. Rs. on whom notices were served Dasti. Matter was adjourned to 11/01/2000. On that date also, none appeared on behalf of the proposed L. Rs. In the meantime, other application for restoration of the suit I. A. No. 11011/99 was listed on 19th January, 2000. On that date also, none was present on their behalf. Perusal of the record reveals that the three of the proposed L. Rs. , who were in Delhi, were duly served and the original postal receipts showing that the notices were sent. to all the L. Rs. by registered post were also on record. Other application (I. A. No. 11351 /99) was shown in the list. Taking into consideration, averments made in the two application which were supported by the affidavit of the lawyer and the plaintiff respectively were allowed and the suit was restored to its original number. It is true that I. A. No. 11351/99 was adjourned for hearing to 12/05/2001. But this did not absolve the proposed L. Rs. not to appear on 1/12/1999 and 11/01/2000 and on the subsequent dates. It is true that I. A. No. 11351/99 was adjourned for hearing to 12/05/2001. But this did not absolve the proposed L. Rs. not to appear on 1/12/1999 and 11/01/2000 and on the subsequent dates. ( 10 ) AFTER restoration of the suit, the applicant-defendant on 17/02/2000 filed an application (I. A. No. 6464/2000) under Order 47 Rules 1 and 2 read with Section 151, Code of Civil Procedure for review of the order dated 19th January, 2000. ( 11 ) AT the risk of repetition, it may be re-called here that in the plaintiff s application (I. A. No. 9333/99) defendant Ms. Harjeet Kaur appeared on her behalf and on behalf of her sister Tavinder Kaur on 19/01/1998. Copy was supplied to her. None appeared on her behalf thereafter. Rest of the L. Rs. remained unserved. The suit was dismissed on account of non-deposit of costs of Rs. 1,000. 00 under section 35-B, Code of Civil Procedure on 2/11/1999. Plaintiff s first, application (I. A. No. 11011 /99) for restoration of the suit came up for hearing on 3/11/1999 and the other application (I. A. No. 11351/99) on 16th November, 1999. Dasti notices were duly served on three L. Rs. living in Delhi and by registered post on the other l. Rs. for 1/12/1999 and postal receipts are on record. None appeared on their behalf on 1/12/1999, llth January, 2000 and on 19th January, 2000 when one of the applications of the plaintiff was listed for hearing and for the reasons noticed above applications were allowed and the suit was restored. ( 12 ) ON 12/05/2000, Ms. Gita Mittal, Advocate appeared on behalf of "l. Rs. " of defendant No. 1 and submitted that she had already moved an application for review of the order dated 19th January, 2000. Registry was directed to trace and place the same on record by the next date of hearing. Matter was ordered to be listed on 12/07/2000. On this date learned Counsel for plaintiff accepted the notice and the matter was adjourned to 27/09/2000. On this date none appeared and application was ordered to be listed on 9th November, 2000. This application was thereafter listed on 19th December, 2000, 5/01/2001 and 23/01/2001. Matter was ordered to be listed on 12/07/2000. On this date learned Counsel for plaintiff accepted the notice and the matter was adjourned to 27/09/2000. On this date none appeared and application was ordered to be listed on 9th November, 2000. This application was thereafter listed on 19th December, 2000, 5/01/2001 and 23/01/2001. None appeared on behalf of defendant-proposed L. R. Consequently, review application was dismissed and following order was passed : "this is an application on behalf of defendants for recalling the order dated 19. 1. 2000. None was present on behalf of the defendants on 5. 1. 2001. Nobody is present even today. Dismissed. " ( 13 ) AT this stage, in order to appreciate the arguments, it would be appropriate to reproduce paras 4 and 5 of the application which read as under: "1 to 4 xxx xxx xxx 4. That the defendants received notice in the application and instructed the counsel for appearing in the matter. When the Counsel for the defendant checked from the Registry it revealed that the matter was adjourned for 11. 1. 2000. On 11. 1. 2000 the Hon ble Judge was on leave and the matter was adjourned to 12. 5. 2000. 5. That in order to prepare the reply to the application the Counsel for the defendants inspected the file on 7. 2. 2000. On inspection it was revealed that the matter was listed again on 19. 1. 2000. The Counsel of the plaintiff without informing the Court that I. A. No. 11351 /99 is coming up on 12. 5. 2000 argued the matter. Non- appearance of the defendants Counsel was not intentional and only in the foregoing circumstances. Thereby defendants have been denied opportunity to contest the application under Section 148, Code of Civil Procedure. For the non-appearance of the defendants the application was allowed and the suit is restored to its original position. 6 to 8 xxx xxx defendant through new DELHI 17/02/2000"advocates ( 14 ) THE above-noted review application was not signed by any "defendant" nor the affidavit of any "defendant" was filed in support of the same. The Advocate filed her own affidavit in support of application. From the reading of the application it was not clear on whose behalf the same was filed. The Advocate filed her own affidavit in support of application. From the reading of the application it was not clear on whose behalf the same was filed. In the application at several places it was stated that the application was moved on behalf of "defendants" and in some paragraphs it was said that the application was moved on behalf of "defendant". Vakalatnama in favour of any lawyer was not filed. It was filed on behalf of defendant Praveen Kaur only on 31/08/2001 during the course of arguments. Learned Counsel for petitioner also argued that on 31/08/2001 when the Vakalatnama was filed on behalf of one Praveen Kaur all acts performed by the Counsel on her behalf earlier stood ratified. This can not help the applicant as the name of the person, on whose behalf the application was moved was not disclosed either in the application or in the affidavit. In the backdrop of these facts, the review application was dismissed as noticed above. ( 15 ) THE defendant has filed yet another application for review (I. A. No. 1921 / 2001) under Order 47 Rule 1, Code of Civil Procedure for re-calling the order dated 23/01/2001 dismissing his review application. In my considered view substantial justice between the parties having been done, no case for any further review is made out. The Apex Court in Pasupuleti Venkatesvwrlu v. The Motor and General Traders, (1975) 1 SCC 770 , after observing that the technical rules of procedure is the handmaid and not the mistress of judicial procedure held : "equity justifies bending the rules of procedure, where no specific provision or fair play is not violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. " ( 16 ) FOR the foregoing reasons, I find no merit in the application and the same is dismissed. No order as to the costs. Application dismissed.