Kerala High Court
S. Mahalinga Bhatta vs Assanare Beary on 11 August, 1972
Equivalent citations: AIR 1973 KERALA 185, ILR (1972) 2 KER 642
ORDER K. Bhaskaran, J.
1. The petitioner in these revision petitions is the plaintiff In the suit O. S. No. 487 of 1966 on the file of the Munsiff's Court Kasaragod. The suit is one for recovery of possession of the plaint schedule properties from the defendant alleging that there has been trespass by him. The suit, after having undergone several adjournments was posted to 28-7-1967 as a last chance. On 28-7-1967 the learned Munsiff happened to be on leave. The suit was therefore reposted to 14-8-1967. On 14-8-1967 again the defendant was not ready and as a very very last chance the suit was posted to 30-8-1967. On 30-8-1967 the defendant was not present in court and his counsel reported no instructions. The result was the suit was decreed as prayed for on 30-8-1967.
2. On 4-9-1967 the defendant filed R. I. A. 1983/67 under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed against him on 30-8-1967. The learned Munsiff in and by his order dated 30-9-1970 dismissed the petition for setting aside the ex parte decree. Aggrieved by the order of the learned Munsiff dated 30-9-1970 the defendant filed C. M. A. No. 35 of 1970 on the file of the Subordinate Judge Kasaragod. On 29-6-1971 the learned Subordinate Judge passed an order which reads as follows :--
"So this petition will be allowed on payment of costs Rs. 30/- irrespective of the result of the suit to be paid within seven days from this date, failing which this appeal will stand dismissed with costs. If the costs is paid within time, the appeal and R. I. A. No. 1983/67 will stand allowed and the suit will be restored to file and the respondent will be entited to the costs of this appeal Call on 8-7-1971."
On 8-7-1971, below the order dated 29-6-1971. the following judgment is seen to have been passed :
"This C. M. A. coming again on this day before me to record the payment of the costs ordered if made, the Court delivered the following.
JUDGMENT:
Costs not paid."
3. In the meanwhile on 7-7-1971 the defendant filed I. A. No. 141/ 71 under Sections 148. 149 and 151, C. P. C., praying that the Court be pleased to receive the costs ordered by the Sub-Court after excusing the delay and to enlarge the time granted originally for payment. This petition was disposed of by the learned Subordinate Judge on 23-11-1971. The operative portion of the order on I. A. No 141/71 dated 23-11-1971 reads as follows:
"In the result, the petition is allowed. Considering the peculiar features of the case, it is directed that both parties will bear their costs in this proceeding. In modification of the observation made in the C. M. A. dated 8-7-1971 that "Costs not paid" which has resulted in the dismissal of the C. M. A., it is ordered that the C. M. A, will stand allowed on payment or deposit of Rupees 30/- as costs ordered on 29-6-1971 by 25-11-1971. Call on 26-11-1971."
The costs ordered was not deposited on or before 25-11-1971. On 26-11-1971 the defendant filed I. A. No. 246/71 for enlarging the time bv one day for paving the costs ordered. On 27-11-1971 the court passed orders allowing I. A. 246/71 as & result of which an order was passed allowing I. A. 141/71 end an order was also passed allowing C. M. A. 35/70. all on 27-11-1971. C. R. P. No. 1375/71 is directed against the order in I. A. No. 246/71 dated 27-11-1971; C. R. P. No. 274/72 is directed against the order in I. A. 141/71 dated 27-11-1971 and C. R. P. No. 276/72 is directed against the judgment in C. M. A. No. 35/70 dated 27-11-1971.
4. As these revision petitions arise from one and the same matter, they were heard together. Sri V. K. Venkatakrishnan, learned counsel appearing for the revision petitioner, has put forward various contentions challenging the validity of the orders and judgment from which these revisions have arisen. The first contention of the learned counsel is that inasmuch as the order of the learned Subordinate Judge dated 29-6-1971 in C. M. A. 35/70 is a conditional order, on the failure of the fulfilment of the condition imposed, the order works out automatically and the dismissal of the petition takes effect from the date on which it was passed, namely 29-6-1971. According to the learned counsel, the court had become functus officio with respect to the entire matter on 29-6-1971 and. therefore. the further proceedings are without jurisdiction, and the orders subsequently passed are neither valid nor legal. The second contention is that the orders that have been passed on I. A. 141/71 and I. A. 246/71 and the judgment in C. M. A. 35/70 are all. in any event, orders that cannot be sustained, either on facts or in law.
5. The main petition, I. A. No. 141/71, is purported to be filed under Sections 148. 149 and 151 of the C.P.C. Section 149 of the C.P.C. obviously has no application to the facts of the case. The contention of the learned counsel is that Section 148 cannot toe invoked, as the time allowed for the performance of the condition had already run out by 6-7-1971 and. therefore, the petition filed on 7-7-1971 is clearly out of time and the court has no jurisdiction to extend the time when the petition is filed only after the order had already worked itself out. Reliance has been placed by the learned counsel on the recent decision of this Court in Kallyani Amma v. Kunhikrishnan, 1971 Ker LT 309 wherein Moidu J. has held as follows:
"When a court passed a conditional order or decree in a proceeding directing a party to deposit costs or other sum of money within a stipulated time with the direction that if the deposit or payment was made certain consequences will follow and on failure to deposit, the proceeding will stand dismissed, the court which passed the decree or order will have no jurisdiction to extend the time as the order worked itself out. Such an order cannot be restored on compassionate ground unless within the stipulated time the petition is (not) filed to get the time extended. In the absence of any such petition, the courts would not be justified in extending the time. Section 151, C.P.C. cannot be made use of in extending the time if the order stipulating the time to deposit the costs or the amount, as the case may be had worked itself out."
My attention has also been drawn to the decision of Sadasivan J. in Hajara Umma v. Muhammed Kunhi Haji, 1968 Ker LJ 873 wherein it has been held--
"Section 148 is clearly inapplicable where the non-compliance of the condition would operate automatically and without further intervention of the court, the suit resulted in a decree and the court becomes "functus officio". If, however, the application for extension is filed before the expiry of the period fixed, the court can grant extension under Section 148 C.P.C.
The position is not improved if instead of Section 148. C.P.C. remedy is sought under Order 47 Rule 1, C.P.C. In a case where a peremptory order directing the deposit within specified time is passed and it is further directed that in the case of non-compliance, an adverse order would follow, the court will have no power at all to interfere on the ground that events that had transpired subsequent to the passing of the order are compelling to take a lenient view in the matter. On non-compliance of the condition, the order that follows will have to be presumed to be an order passed on the date when the condition itself was imposed. On non-compliance of the condition a decree has resulted in the appeal and that decree will date back to the date on which the condition was imposed. The failure to deposit the amount for any reason whatsoever can only be an event subsequent to the passing of the decree and on that account the decree cannot be reviewed, Oversight on the part of the party or the advocate is hardly a ground for review."
In Tarapada v. Nepal Gazi, AIR 1965 Cal 354 it has been laid down that--
"Where a Court, upon an application under Order 9, Rule 13, passes an order restoring the suit on the condition of payment of costs to the opposite party on or before a particular date and directs that the application for restoration is to stand dismissed in case of default and the payment is not made before expiry of the fixed day, the Court has no jurisdiction under Section 148 to condone the delay and enlarge the tune.
The effect of such conditional order Is that as soon as the time fixed in the order expired and no payment or deposit was made the application for restoration stood dismissed and the Court ceased to have any jurisdiction to extend the time as the action was dead. Therefore, there could be no question of any enlargement of time as contemplated under Section 148."
In Kanduri Sahu v. Nidhi Sahu, AIR 1966 Orissa 44 the observation is as follows:--
"There are various provisions in the Code prescribing or allowing the doing of an act for which time is fixed or granted by the Court. In all such cases, the Court has powers under Section 148 of the Code to enlarge the time, even after expiration of the period originally fixed. The time granted by the Court for payment of costs, while setting aside an ex parte decree, as a condition precedent thereto, is not an act prescribed or allowed by the Code. The Court fixes or grants time for payment of the costs, but it is not for doing an act prescribed or allowed by the Code. Section 148 does not apply to such a case. Section 151 can however, be invoked in such a case. Nothing in Section 148 would conflict with the exercise of powers under Section 151 in such cases. Where the trial Court in such a case, without at all adverting to its powers under Section 151 refused to extend time granted by it for payment of the costs on the ground that it had no power to extend the same, it failed to exercise jurisdiction vested in it and its order is liable to be interfered with under Section 115 (b) of the Code."
The sum and substance of the argument of the learned counsel for the revision petitioner is that Section 148 has no application to a case like this where the extension of lime sought for is not anything which the court prescribes a litigant to do. Secondly, even assuming that Section 148 has application, the petition for enlargement of time has to be presented before the expiry of the period prescribed or fixed in performing the condition imposed or the act to be done.
6. Sri. A. R. Meloth learned counsel appearing for the respondent, contends that the arguments based on the decisions that have already been referred to will not hold good in view of the ruling that has been given by the Supreme Court in Mahanth Ram Das v. Ganga Das. AIR 1961 SC 882. In that case the Supreme Court has held that where the party was not in a position to pay court-fee ordered by the court within the stipulated period, but put in, before the expiry of the stipulated period, an application for extension of time under Section 148 of the C.P.C. such extension could be granted even if the period stipulated had expired by the time the order on the application was passed. Referring to the powers under Sections 149 and 151 of the C.P.C., the Supreme Court held that in appropriate cases extension of time could be granted even after the expiry of the stipulated period for the fulfilment of the condition. It may. however, be noted that on the question of application of Section 148 the decision of the Supreme Court cannot be called in. aid in this case, as the facts considered in that case are quite different The main distinction is that whereas in the Supreme Court case the petition for extension of time was filed before the expiry of the stipulated period in the present case the petition for extension of time was admittedly filed after the expiry of the period stipulated. I am in agreement with the view taken by this Court and also by the Calcutta High Court in the decisions referred to above that where the order is a self-working one, allowed to work itself out by efflux of tune it is not competent for the aggrieved party to move for extension of time; end the court will have no jurisdiction to grant such relief under Section 148. C.P.C. My attention is drawn to a decision of the Andhra High Court in Andhra Rice Mill v. B. Chanchiah, (1968) 2 Andh LT 115 where the view taken is--
"Under Section 148, C.P.C. extension of time can be granted even on an application asking for it but filed after the relevant date of payment fixed by the conditional order (in this case 15-1-1965) had passed and even though that conditional order says that the petition would stand dismissed if the payment was not done on or before the date indicated (in this case namely 15-1-1965). The lower Court had jurisdiction to grant extension of time in the present case."
Reliance has been placed by the Andhra High Court on the decision of the Supreme Court in AIR 1961 SC 882 to which reference has already been made. The petition that came up before the Supreme Court for consideration was not one filed after the expiry of the date for performance of the condition imposed, and it does not appear to have been stated anywhere in the decision of the Supreme Court that where the order is a self-working one and the petition is filed after the expiry of the period fixed, the Court will have jurisdiction to grant the relief of extension of time under Section 148. C.P.C. I am not therefore, in a position to accept the reasoning given in the decision of the Andhra High Court referred to above to come to the conclusion that even after the expiry of the period prescribed in a conditional (self-working) order relief could be granted on an application filed after the expiry of the time fixed. The learned counsel for the revision petitioner has also placed reliance on the decision of Vaidialingam J. in Subramanian Chettiar v. Krishnaveni Ammal (1964 Ker LT 622). In that case also reference has been made to the decision of the Supreme Court in AIR 1961 SC 882. However, in that case there was no need to consider the question of competency of the court to grant extension of time on a petition filed under Section 148. C.P.C., if it was filed after the expiry of the period prescribed in a self-working order. In fact, the matter that arose for consideration in that case was not one based on a conditional order. When that is so, under Section 148. C.P.C.. undoubtedly the court has power to grant extension of time, as Section 148. C.P.C. reads as follows:--
"Enlargement of time.-- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."
It is in this context the argument of the learned counsel appearing for the revision petitioner based on the decision of the Orissa High Court in AIR 1966 Orissa 44 assumes importance. Where the order does not relate to any act prescribed or allowed by the Code of Civil Procedure. Section 148, in my view, also cannot have any application. I am, therefore, of the opinion that for two reasons Section 148 C.P.C. cannot be applied to the present case: (1) inasmuch as the extension of time prayed for does not relate to any ect prescribed or allowed by the C.P.C., in the case of the impugned orders Section 148 has no application; and (2) the petition has been filed after the expiry of the period granted by the court and that order has already worked itself out from the date on which the condition was imposed by the court. I have already stated that Section 149. C.P.C. cannot have any application to the present case. The only other question that remains to be considered is whether, by resorting to the inherent power under Section 151, C.P.C., the relief sought for by the defendant should have been granted by the appellate Court.
7. Now a few words about the facts that emerge in this case. The defendant as is evident from the adjournments that the case had undergone, was adopting dilatory tactics before the court. The learned Munsiff on a consideration of the relevant facts dismissed the petition for setting aside the ex parte decree. After the passing of the ex parte decree the petition for setting aside the ex parte decree was taken up after the lapse of more than 3 years. It is indeed a pity that a court should have allowed to remain on its file a petition of this nature, which could have been heard and disposed of without spending much time for over 3 years. It is thereafter, against the order on the petition for setting aside the ex parte decree, that the C. M. A. was filed. It took nearly one year for the appellate Court to decide the matter. So. by the time the appellate Court decided the matter, a period of four years had elapsed from the date of the passing of the ex parte decree. The learned Subordinate Judge was pleased, taking a very lenient view in the matter, to allow the appeal and also to set aside the ex parte decree, provided the defendant paid a sum of Rs. 30/- within one week from 29-6-1971. As though the defendant was not satisfied with the time the litigation has already taken, he did not pay the amount on the due date. On 7-7-1971 he filed a petition with an affidavit in support thereof. The learned counsel appearing for the revision petitioner submits that the facts stated in the affidavit in support of the petition cannot stand scrutiny. I do not, however, wish to go into the merits of the case inasmuch as the revision petitioner has not chosen to file a revision against the order dated 29-6-1971.
8. Incidentally I would like to express my unhappiness with respect to certain facts brought to my attention during the course of the arguments. In the affidavit in support of the petition, I. A. 141/71. reference has been made to Ext. A-2. a letter written by the defendant's advocate to his client on 30-6-1971 informing him that the Subordinate Judge had decided the matter in his favour and that a sum of Rs. 30/-ordered by way of cost had to be deposited before 7-7-1971. The most disturbing fact is that prima facie there appears to have been some manipulations in the relevant entry in the A register maintained by the Sub-Court. The records in a court are to be kept with utmost care, and those who are in charge of them should display absolute fairness, honestly and integrity. They should be so maintained as to give no room for suspicion whatsoever about the genuineness of the entries contained in them. The learned Subordinate Judge in paragraph 5 of his order dated 23-11-1971 in I. A. No. 141/ 71 states that in Ext. A-2 letter the defendant's counsel has stated that the cost was to be deposited on or before 7-7-1971. Factually it is not fully correct, because the letter categorically says that the deposit had to be made before 7-7-1971, not "on or before 7-7-1971". I do not wish to express my view on the inference of the learned subordinate Judge that the entry as it originally stood in the A register showed the date as 8-7-1971 and that it was subsequently changed into 6-7-1971 without notice to parties and that misled the defendant. All the same. I feel that a cloud of suspicion surrounds the alleged entry and the alleged change, and the matter deserves to be enquired into to bring to light the truth.
9. It does not appear to be the function of Bench Clerk, while making the entries in the A register, to make calculations on his own accord and give the exact date by which the order was to be complied with. The order of the court in this case is only to the effect that the costs ordered was to be paid within "seven days". Even though the Bench Clerk who made the entry over-stepped a little by making the entry on the basis of his calculation, it could have possibly been tolerated if the entry that has been made was correct on facts and remained intact. The date in the letter Ext. A-2 does not give any room for coming to the conclusion that, as it originally stood, the entry in the A Register was 8-7-1971. If, as a matter of fact, the advocate's clerk had noted the date as 8-7-1971, the counsel would not have written that the amount was to be paid before 7-7-1971. This is a matter which should have received the serious attention of the learned Subordinate Judge and an investigation on the administrative side also should have been conducted.
10. The defendant, even after I. A. No. 141/71 was allowed on condition, did not comply with the condition imposed. At least by that time he may be presumed to have known the effect of a conditional order. By now it is five years since the date of the passing of the ex parte decree. A person who is not diligent in prosecuting his matter in court is not entitled to any sympathetic consideration from the court. Section 151 may in proper cases be available for seeking extension of time for compliance of an order; but I do not think that this is a case which, on the facts and circumstances, could be treated to be one appropriate for such consideration. Also there is no explanation as to what happened to the money which is supposed to have been paid into the hands of the advocate for the defendant. Anyway the conduct of the defendant is such that he seems to be more interested in protracting the proceedings than seeking relief toy acting with diligence. I do not, therefore think that the learned Subordinate Judge was justified in exercising the inherent power under Section 151, C.P.C. in order to extend the time.
11. In the result, the revision petitions are allowed. The judgment in C. M. A. 35/70 and the orders on I. A. Nos. 141 of 1971 and 246 of 1971 passed by the learned Subordinate Judge are set aside. The order of the learned Munsiff on R. I. A. 1983 of 1967 is confirmed. In the circumstances of the case I direct the parties to bear their respective costs. A copy of this order may be forwarded to the Registrar for appropriate action on the administrative side.