Madras High Court
Kotaichamy vs Saravanan on 3 April, 2009
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD)MD.No.439 of 2009 and M.P(MD)No.1 of 2009 Kotaichamy ... Petitioner/Petitioner/defendant Vs. Saravanan ... Respondent/Respondent/plaintiff Prayer Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, against the fair and decreetal order made in I.A.No.278 of 2006 dated 20.08.2008 in O.S.No.62 of 2001, on the file of the learned District Munsif cum Judicial Magistrate, Bodinayakanur. !For Petitioner ... Mr.P.Muthu Vijaya Pandian ^ * * * * * :ORDER
The revision petitioner/defendant has preferred this civil revision petition as against the order dated 20.08.2008 in I.A.No.278 of 2006 (filed under Section 148 read with Section 151 of the Code of Civil Procedure) in O.S.No.62 of 2001 passed by the learned District Munsif - cum - Judicial Magistrate, Bodinayakanur,, in dismissing the application filed by the revision petitioner/defendant for extension of time to comply with the conditional order dated 12.09.2006 passed in I.A.No.109 of 2006.
2. Heard the learned Counsel for the petitioner.
3. The trial Court while passing order in I.A.No.278 of 2006 has inter alia opined that 'the respondent/plaintiff has accrued valuable right due to the conduct of the revision petitioner and that right could not be easily thrown away' and further, the revision petitioner has not given any valuable and acceptable reason for the non-payment of the costs in time and for the delay in filing the petition and resultantly, dismissed the application without costs holding that the same is not maintainable.
4. It is not in dispute that the trial Court has passed the conditional order in I.A.No.109 of 2006 on 12.09.2006 filed by the revision petitioner/defendant in which he has been directed to pay a cost of Rs.500/- (Rupees Five Hundred only) to the respondent/plaintiff on or before 09.10.2006.
5. The learned Counsel for the revision petitioner informs this Court that the said I.A.No.109 of 2006 has been dismissed by the trial Court on 10.10.2006 for non-compliance of the conditional order passed on 12.09.2006.
6. Concededly, when I.A.No.109 of 2006 filed by the revision petitioner/defendant has been dismissed by the trial Court on 10.10.2006, it is evident that the revision petitioner/defendant has not taken any further proceedings to set aside the order passed in I.A.No.109 of 2006 dated 10.10.2006 in the manner known to law. Instead the revision petitioner has filed I.A.No.278 of 2006 praying to extend the time for compliance of the conditional order dated 12.09.2006 passed in I.A.No.109 of 2006 to pay costs of Rs.500/- (Rupees Five Hundred only) and the same has been dismissed by the trial Court on 20.08.2008, as against which the present civil revision petition is preferred by the revision petitioner before this Court.
7. Legally speaking, I.A.No.109 of 2006 has not been pending on the file of the trial Court when the revision petitioner/defendant has filed I.A.No.278 of 2006 on 18.12.2006. When the I.A.No.109 of 2006 is not pending as on the date of filing of the I.A.No.278 of 2006 on 18.12.2006, then the proper course for the revision petitioner/defendant is to file necessary application to restore the said I.A.No.109 of 2006 to the file of the trial Court in accordance with law. In the absence of such course being resorted to by the revision petitioner, this Court opines that it is open to the revision petitioner/defendant to file an I.A. and to seek necessary relief before the trial Court.
8. Suffice it for this Court to point out that the revision petitioner/defendant without taking any further steps to restore I.A.No.109 of 2006 to the file of the trial Court, has projected I.A.No.278 of 2006 before the trial Court and the same is not per se correct in the eye of law. Further, the trial Court ought not to have entertained the I.A.No.278 of 2006 filed by the revision petitioner before the trial Court under Section 148 read with Section 151 of the Code of Civil Procedure, praying to extend the time for complying with the conditional order dated 12.09.2006 passed in I.A.No.109 of 2006 when the petitioner has not taken any steps to file an I.A to restore the I.A.No.109 of 2006 which has been admittedly dismissed on 10.10.2006 and ought to have returned the same at the unnumbered stage and should have directed the revision petitioner/defendant to file an I.A. to restore the I.A.No.109 of 2006. Under these circumstances, this Court is of the view that the present civil revision petition filed by the revision petitioner/defendant to set aside the order passed in I.A.No.278 of 2006 dated 20.08.2008 without resorting to the recourse of filing of an I.A. to restore the I.A.No.109 of 2006 is per se not maintainable in law, in the considered opinion of this Court and further, this Court without going into the merits of the matter, comes to the conclusion that the present civil revision petition is to be dismissed in the interest of justice.
9. Before parting, this Court is of the considered view that a Court of law has an undoubted jurisdiction to enlarge the time from time to time and even in a case where the period determined has already lapsed. The Court does not lose seisin of the case after the expiry of such period, notwithstanding a default until it makes an order finally disposing of the proceeding before it. (The only exception being a conditional decree). In fact, where the Court determines a time frame for doing a particular act, the Court always retains the power to enlarge the time for doing so and in this regard, the principle of Section 148 of the Code of Civil Procedure should govern not whittingly down the discretion conferred on the Court. Moreover, the power given to the Court under Section 148 of Code of Civil Procedure is discretionary and must be used for the purpose of advancing the cause of justice in case of necessity.
10. In the result, this Court without going into the merits of the case, dismisses the civil revision petition without costs. Resultantly, the connected Miscellaneous Petition is dismissed. However, this Court issues a direction to the revision petitioner/defendant to file necessary application before the trial Court to restore I.A.No.109 of 2006 and also to file a separate fresh I.A. praying for extension of time in regard to the payment of costs, if so advised, in accordance with law before the trial Court and seek appropriate remedy and the trial Court is also hereby directed to deal with the same on merits after providing due opportunities to file counter and hear them in accordance with the well settled principles of law. It is made clear that the dismissal of I.A.No.278 of 2006 by the trial Court will not preclude the revision petitioner in filing a separate fresh I.A praying for extension of time for payment of costs as per the relevant provisions of the Code of Civil Procedure.
rsb To The District Munsif cum Judicial Magistrate, Bodinayakanur.