Inserted in 1976 to fight the great enemy of civil justice — delay. If a party stalls (skips a required step or grabs an adjournment), the Court can make it reimburse the other side’s wasted day in court, and paying that cost becomes a condition precedent to carrying on.
⏳
How to read Section 35B
1
The mischief
Repeated adjournments and missed steps that waste the opponent’s time and money. §35B makes the delaying party pay for the wasted attendance.
2
The teeth — condition precedent
It is not just a cost award. Payment by the next day is a CONDITION PRECEDENT to further prosecuting the suit (plaintiff) or the defence (defendant). No pay, no progress.
3
Kept separate
These costs are compensatory, not part of the final decree costs. If paid, they are not added to the decree; if not paid, a separate executable order is drawn up.
The bare Act — verbatim
⏳ Section 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 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.
Dissecting Section 35B — sub-section by sub-section
⏳ How a §35B order works
1
📅
Date fixed
A date is set for hearing or for taking a step in the suit.
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2
⛔
Party stalls
(a) fails to take the required step, OR (b) obtains an adjournment.
→
3
💰
Court orders cost
For reasons recorded — pay the other side enough to reimburse their wasted day in court.
→
4
🔒
Pay by next day
Payment is a condition precedent to going further.
✅
Pays the cost
The gate opens — the plaintiff may continue the suit / the defendant may continue the defence.
⏺️
Does not pay
Further prosecution of the suit / defence cannot proceed until it is paid.
👥 Explanation: where defendants raise separate defences, the pay-or-stop rule bites only on the group actually ordered to pay — not on co-defendants who were not.
TriggerIf, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit—Sets the moment: a scheduled date for hearing or for any step, and a party who is supposed to act on it.
Trigger (a)fails to take the step which he was required by or under this Code to take on that date, orFirst way to cause delay — simply not doing the step the Code required that day (e.g. not filing, not producing a witness).
Trigger (b)obtains an adjournment for taking such step or for producing evidence or on any other ground,Second way — getting the matter put off, for any reason, so the step or evidence slips to a later date.
Powerthe Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would … be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that dateDiscretionary (“may”) + reasons recorded. The measure is compensatory — enough to repay the opponent for that day’s wasted attendance, not a fixed fine.
Sanctionpayment 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 … (b) the defence by the defendant …The real teeth: pay by the very next day, or you cannot carry on — the plaintiff cannot prosecute the suit, the defendant cannot prosecute the defence.
ExplanationWhere separate defences have been raised by the defendants or groups of defendants, payment … shall be a condition precedent to the further prosecution of the defence by such defendants or groups … as have been ordered by the Court to pay such costsIn multi-defendant suits with separate defences, the bar is targeted — it stops only the defendant/group actually ordered to pay, leaving others free.
💲 Two roads after the order
🧾
If PAID
The amount is NOT added to the costs in the final decree — it has already done its job of reimbursing the other side. No double-counting.
📋
If NOT PAID
A separate order is drawn up — amount + names & addresses of those liable — and is executable against them like a money order.
So the delay-cost is ring-fenced from the decree costs: paid → spent; unpaid → independently recoverable.
If paidThe 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 suitOnce paid, the delay-cost is kept out of the final decree’s costs — it is a standalone, immediate compensation, not part of the eventual costs tally.
If not paidbut, 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 personsNon-payment doesn’t make it vanish: the Court draws up a separate, self-contained order (amount + who owes it) that can be executed against those persons independently.
Section 35B at a glance
⚙️ Elements (working parts)
Trigger on a fixed date: fail to take a step OR obtain adjournment
Court orders reimbursement of the wasted attendance, with reasons
Payment by next day = condition precedent to continue
Paid → out of decree costs; unpaid → separate executable order
⏱️ Conditions & character
Power is discretionary (“may”), reasons mandatory
Costs are compensatory, not penal/fixed
Bar is targeted (Explanation — only the group ordered to pay)
Aim: discipline delay, protect the diligent party
The maxim behind it
The maxim behind it
Vigilantibus non dormientibus jura subveniunt
“The laws come to the aid of the vigilant, not of those who sleep (on their rights).”
Vigilantibus — to the vigilant / watchful non — not dormientibus — to those sleeping jura — the laws / rights subveniunt — come to the aid / assist
§35B is this maxim in action: it penalises the dilatory litigant who wastes the court’s and the opponent’s time, and protects the party who is ready and diligent — the process rewards vigilance, not procrastination.
How sub-sections (1) and (2) connect
🔗 Impose the cost, then dispose of it
SUB-SECTION (1) — IMPOSE
Order + condition precedent
The delaying party must reimburse the wasted day, and pay by the next day or be barred from carrying on the suit/defence.
THE COST ORDERED UNDER (1)
↔
what becomes of it
SUB-SECTION (2) — DISPOSE
Paid vs not paid
Paid → kept out of the decree costs. Not paid → a separate executable order is drawn up.
(2) opens with the very words “the costs ordered to be paid under sub-section (1)” — so it is the direct sequel to (1). Sub-section (1) imposes the delay-cost and uses it as pressure to proceed; sub-section (2) settles its accounting and recovery — spent if paid, independently executable if not.
