Madras High Court
Arthanari And Anr. vs S. Seshagiri Rao And Ors. on 21 September, 2001
ORDER V. Kanakaraj, J.
1. This civil revision petition is directed against the fair and decretal order dated 28.6.2001 made in R.E.A.No. 34 of 2001 in R.E.A.No. 15 of 2001 in R.E.P.No. 107 of 1995 in O.S.No. 178 of 1997 by the Court of District Munsif, Dharmapuri, thereby dismissing the application filed by the petitioners herein under O.21, Rule 11, C.P.C. praying for the delivery of possession of the petition mentioned properties, as per the procedures established under O.21, Rules 22 and Section 35, C.P.C.
2. After all, it is an application filed under Section 148, C.P.C. before the Court below seeking an extension of time from 28.3.2001 for the payment of the cost of Rs. 100 as ordered by the Court below, for the Court to send for certain documents, thus conditionally allowing the said application in R.E.A.No. 15 of 2001 and the said amount since should have been paid on or before 28.3.2001 as per the order passed by the Court below, had not been able to be paid by the petitioner and hence, seeking extension of time, he had filed the above application the very next day that was on 29.3.2001, assigning reasons that he had contacted his lawyer on 16.3.2001 to know about the stage of the orders in the above R.E.A.No. 15 of 2001 and that his counsel told him that the Judge was on leave on 16.3.2001 and the case was posted on 22.3.2001; that since he was not able to contact his lawyer on 22.3.2001, on account of his having gone out of town, and when he met his lawyer again on 29.3.2001, he was informed that the case was dismissed for non-payment of the cost. On such grounds and further stating that the non-payment of the cost was neither wilful nor wanton, but only in the circumstances explained above, the petitioner would pray for extension of time by one day i.e., from 28.3.2001.
3. A counter would be filed to the effect that time could not be extended in a disposed matter setting aside the order of dismissal, since the petitioner did not take any steps to comply with the order and hence this petition deserves to be dismissed, in limine.
4. The lower Court, having considered the facts and circumstances of the case and in spite of many decided cases being cited, which are reported in Seethai Ammal and five Ors. v. V.C. Vaikundan and Ors., Periyakkal v. Dakshyani and Muniyammal v. Sakkubai , had pointed that it was a conditional order and that the application filed under Section 148, C.P.C. is not proper and dismissed the said application.
5. Many a time, the upper forums of law, including this Court, have insisted that the pith and marrow of the substance of the petition and the relief required to be ordered count more and not the mere provision of law, and just for the reason of misquoting a provision of law or filing the petition under a wrong provision of law, denial of the relief is unreasonable since the petitioner does not become disentitled to the relief sought for. Therefore, it is relevant to know as to what is the requirement of the petition and not the exact provision under which the petition has been filed, even though it is reasonably expected of the petitioner to file the petition under proper provision of law.
6. From the above facts and circumstances, it is revealed that this is a case in which the default had occurred and the lower Court could have considered the same, even though in quoting the provision of law or seeking the proper relief, the petitioner might have committed certain errors without exactly mentioning either the provision of law or the relief prayed for in the circumstances of the case, thereby narrating the whole events and the direction issued by this Court to be followed in the order, and therefore, dismissing the application in such circumstances wherein the fault is not either irreparable or unpardonable, is improper and the Court could very easily point out the minor errors committed on the part of the petitioner and could graciously grant the relief which is exactly required in the circumstances of the case, in the interest of justice, which the lower Court has failed to do in realisation of its duties and responsibilities.
7. It is very easy to dismiss the application under the pretext of citing a technical flaw or non-adherence of the rules, but realising the consequencies of such dismissal, the Court should render appropriate relief that is required in the circumstances of the case.
8. In all probabilities, it is a case that should have been ordered in a positive manner allowing the application with slight modification in the order regarding the prayer. Hence, it has become incumbent on the part of this Court to allow the above revision petition, setting aside the fair and decretal order passed by the lower Court.
9. In result, the above civil revision petition stands allowed setting aside the fair and decretal order dated 28.6.2001 made in R.E.A.No. 34 of 2001 in R.E.A.No. l5 of 2001 in R.E.P.No. 107 of 1995 in O.S.No. 178 of 1997 by the Court of District Munsif, Dharmapuri. No costs.
10. However, the learned District Munsif, Dharmapuri, is hereby directed to dispose of the matter within three months from the date of receipt of a copy of this order by the lower Court.
11. Consequently, C.M.P.No. 10884 of 2001 is closed.