Madras High Court
Jothi Anand vs Amirtha Raj on 31 July, 2006
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31/07/2006
CORAM
THE HON'BLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
C.R.P. PD. No.1138 of 2005
and
C.M.P.No.13918 of 2006
Jothi Anand .. Petitioner
-Vs-
Amirtha Raj .. Respondent
Prayer: The Civil Revision Petition filed against the fair and
decreetal order passed in I.A.No.6234 of 2005 in I.A.No.6112/2004 in O.S.
No.9516 of 1996 on the file of the VIII Assistant Judge, City Civil Court,
Chennai
!For Petitioner : Mr. R.Sundar Rajan
^For Respondent : Mr. M.Mohemd Riyaz
:ORDER
The order passed in I.A.No.6234/2005 in I.A.No.6112/2004 in O.S.No.9516/1996 on the file of the VIII Assistant Judge, City Civil Court, Chennai, is under challenge before this Court.
2. The conditional order passed in I.A.No.6112/2004 in O.S.No.9516/1996, according to both the counsels, is that the revision petitioner/defendant in O.S.No.9516/1996 is to pay a cost of Rs.500/- to the plaintiff on or before 3.3.2005. The said application was filed to reopen the suit and recall P.W.1 for the purpose of cross-examination. Since the Defendant could not comply with the condition before 4.3.20 05, I.A.6112/2004 was dismissed. Subsequently, the Defendant has filed I.A.No.6234/2005 on 11.3.2005 for extension of time to comply with the condition imposed in I.A.No.6112/2004. The learned trial Judge dismissed the application holding that the Court has become functus officio following the decision reported in 2001(1) TNLJ 291 and AIR 1988 MADRAS 241.
3. The learned counsel appearing for the revision petitioner relied on the decision reported in 2006(3) CTC 418 (Gowri Ammal Vs. Murugan and others) and contended that the Court will not become functus officio on dismissal of application for non-compliance of conditional order. A single Judge of this Court has referred the question of law to the Devision Bench as to whether after the dismissal of earlier application for non-compliance of the conditional order within the time stipulated, whether the Court has jurisdiction to entertain a petition for extension filed under Section 148 r/w 151 of CPC? The short facts of that case are as follows:
"The plaintiff filed O.S.No.16/99 for partition and separate possession. The 2nd defendant in that suit is Gowri Ammal, who had purchased the suit property from one Dhanapal Gounder, who is the 1st defendant in the suit, through a registered sale deed. The suit was decreed exparte on 20.9.1999 as against the 2nd defendant/Gowri Ammal. Thereafter, she filed I.A.No.180/2002 to condone the delay of 1009 days in filing a petiton to set aside the exparte decree. The delay was condoned by the trial Court imposing a conditon on the petitioner to pay a sum of Rs.500/- to the respondents on or before 18.3.2003. The said amount was not paid in time. Therefore, the petition to condone the delay was dismissed on 18.3.2003. On 5.8.2003, the petitioner filed an application vide I.A.435/2003 under Section 148 and 151 of CPC to extend the time for payment of costs. The said IA was dismissed by the trial Court on the ground that the Court has become functus officio and cannot extend the time. Against the said order, the CRP was preferred by the 2nd defendant therein.
This court in D.Raju Vs. N.Ramalingam, 2001(3) LW 254, Angammal Vs. Ramasamy, 2003(3) MLJ 770 and K.Rangasamy Gounder Vs. Muthusamy Gounder, 2005(3) MLJ 331, has held that the Court has no power to extend the time under Section 148 of CPC and it has become functus officio. But, subsequently the Honourable Apex Court in 2005(6) SCC 344 ( SalemAdvocate Bar Association, T.N. Vs. Union of India), has held that the Court can invoke both Sections 148 and 151 of CPC, to condone the delay if the circumstances so warrant."
After analysing the above mentioned decisions, the Division Bench of this Court has held as follows:
"The decision rendered by the Supreme Court on this point, which is a ratio decidendi, is a law on the land, binding on all Courts in India, under Article 141 of the Constitution of India. Where the Supreme Court has stated that the law laid down in a particular case is the applicable law, it cannot be contended that the decision rendered by the Supreme Court has not considered the point, regarding functus officio. It is not only a matter of discipline for the High Courts in India, but it is the mandate of the Constitution, as provided under Acticle 141, that the law declared by the Supreme court shall be respected by all the Courts and the counsel as well as the parties, within the territory of India.
In view of the above conclusions, we are in total agreement with the view expressed by the learned single Judge, that the decisions rendered by the other learned single Judges in (i) D.Raju vs. N. Ramalingam, 2001(3) Lw 254,
(ii) Angammal Vs. Ramasamy, 2003(3) MLJ 770 and ( iii) K.Rangasamy Gounder Vs. Muthusamy Gounder, 2005(3) MLJ 331, require re-consideration.
Accordingly, we hold that the decisions rendered by this Court in (i) D.Raju vs. N.Ramalingam, 2001(3) Lw 254, ( ii) Angammal Vs. Ramasamy, 2003(3) MLJ 770 and (iii) K.Rangasamy Gounder Vs. Muthusamy Gounder, 2005(3) MLJ 331, are not good laws.
In the present case, the trial Court simply dismissed the application, stating that it had no power. But, we have concluded that the Court has got power to entertain an application under Sections 148 and 1 51 of CPC, to consider the merits of the matter for condoning the delay or for extending time. Admittedly, in this case, the application has been filed before the Trial Court under Section 148 and 151 of CPC.
In the above case, the Division Bench of this Court, after seting aside the order of the trail Court, remanded the matter to the trail court for re-consideration in accordance with law.
4. The above facts of the case squarely applies to the present facts of the case. Here also I.A.No.6234/2005 was filed under Section 14 8 and 151 of CPC. The reason given by the trial Court for the dismissal of the said application is that the Court has become functus officio is not proper.
5. At this juncture, the learned counsel on both sides represent that this is a part heared suit and the defendant is prepared to pay the costs and the plaintiff is also prepared to receive the same here itself and suitable orders may be passed here itself. The cost of Rs.500/- is paid to the plaintiff and to that effect learned counsel for the petitioner made an endorsement in the petition.
6. In view of the above, this Civil Revision Petition is allowed and the order passed in I.A.No.6234/2005 in I.A.NO.6112/2004 in O.S.No.9516/1996, is set aside. The trial Court is directed to proceed with the trial of the suit and dispose of the case in accordance with law, within six weeks from the date of receipt of copy of this Order. No costs. Consequently, connected CMP is closed.
ssv To, The VIII Assistant Judge, City Civil Court, Chennai.