Madhya Pradesh High Court
Kamaluddin (Deceased By L.R'S.) vs Chhotelal (Deceased By L.R'S.) on 5 December, 1985
Equivalent citations: AIR 1987 MADHYA PRADESH 39, (1986) 2 CIV LJ 266, (1986) JAB LJ 494, (1986) MPLJ 193
ORDER Ram Pal Singh, J.
1. The applicant-plaintiff has challenged an order passed by the Additional District Judge, Vidisha, in Civil Appeal No. 128 of 1974 dt. 28-2-1977, in this Civil Revision filed under Section 115 of the Civil P.C.
2. Both the original applicant and the non-applicant are dead, and their legal representatives have already been brought on record. The short facts, which give rise to this revision, are that applicant-plaintiff Kamaluddin filed a suit against the non-applicant-defendant for specific performance of a contract, which was decreed on 13-10-1971 to the effect that if non-applicant-defendant Chhotelal deposited Rs. 1,300/- as principal and Rs. 267.50 p. as costs of the litigation in the Court by 12-1-1972, then he shall continue to be the owner of the house. But, if he failed to deposit the aforesaid amount within the stipulated date, then the plaintiff-applicant Kamaluddin shall pay Rs. 200/- to the non-applicant-defendant, who shall then execute a sale deed in favour of the plaintiff, and the plaintiff shall also get the possession of the house.
3. In compliance with the terms of the decree, non-applicant-defendant Chhotelal deposited an amount of Rs. 1,300/- in the Court on 10-1-1972, but he failed to deposit the costs of Rs. 267.50. He submitted an application before the lower Court praying that his counsel failed to inform him that he was required to deposit the amount of Rs. 267.50 p. also as the costs of the suit, and that was the reason why he could not deposit the amount within the stipulated time. But, when the application of the plaintiff was brought" to his notice, he immediately deposited that amount on 20-9-1972 and prayed for the condonation of this delay and extension of time. The lower Court allowed the prayer of the non-applicant-defendant and condoned the delay, and also extended the time up to the date of the actual deposit of the costs. The applicant was aggrieved by this order : hence, he preferred an appeal in the District Court. The Additional District Judge, Vidisha, dismissed this appeal of the applicant and, hence, by this petition the revisional jurisdiction of this Court has been invoked.
4. The main contention of Shri P.W. Sahastrabuddhe, learned counsel for the applicant; is that the said time was extended by the trial Court in spite of his opposition. His second contention is that when the Court had prescribed a specific date for depositing the whole amount and had also provided a conditional clause, then it had no power to extend the time. Shri D.K. Katare, learned counsel for the non-applicant, on the other hand, contended that the Court has power to condone the delay and there is no defect in the exercise of the jurisdiction by the Court below and, therefore, this revision petition should be dismissed.
5. Section 148, CPC, which deals with enlargement of time, is being reproduced below: --
"148. Enlargement of time.-- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Court, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."
The law on the point has been finally settled by the Supreme Court in the case of Mahanth Ram Das, AIR 1961 SC 882. According to Mahanth Ram Das's case (supra) the Courts have undoubted jurisdiction to extend time in cases where Section 148 applies even after the expiry of the time originally fixed, until and unless the Court has made any subsequent order finally disposing of the proceeding and that when Section 148 in terms does not apply, the Court may give relief in proper cases under Section 151, CPC, provided, however, the peremptory order relating to the condition is procedural and not connected with any substantive matter in the suit, appeal or application about which judgment or final order has been passed by the Court as in a conditional decree. In a subsequent case, the Supreme Court has confirmed this view in the case of Smt. Periyakkal, AIR 1983 SC 428:
"Where in an appeal arising out of an application under Order 21, Rule 90, the parties entered into a compromise and invited the Court to make an order in terms of the compromise which the Court did, the time for deposit stipulated by the parties became the time allowed by the Court and this gives the Court the jurisdiction: to extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True, the Court would not rewrite a contract between the parties but the Court would relieve against a forfeiture clause; and where the contract of the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would surely not stand curtailed."
This Court also in a Full Bench judgment in the case of Budhulal Kasturchand, AIR 1977 Madh Pra 1 followed the same view as laid down by their Lordships of the Supreme Court.
6. Even if in the initial order the Court may have said that if the costs are not paid before a certain date fixed for it, the suit shall stand dismissed, the Court does not lose seisin of the case after the expiry of such period notwithstanding the default. The contention of Shri Sahastrabuddhe deserves to be rejected on the ground that the duty of the Court of law is to administer justice, sometimes loosening the rigors of the procedural law. It is the substantive justice which should be administered and not the procedural justice. Procedure is meant to facilitate the way for the administration of real justice and not to defeat it. Section 148 in terms allows extension of time even if the original period fixed is expired and, similarly, Section 149 also is equally liberal in this respect. An order extending time for payment of the costs, though passed after the expiry of the time fixed, could operate from the date on which the time fixed had expired. This Court cannot also forget the maxim lex non cogit ad impossibilia (i.e., the law does not compel a man to do that which he cannot possibly perform). The legal maxim actus curiae neminem gravabit (i.e., the act of the Court shall prejudice no man) can also not be lost sight of.
7. It is, thus, clear from the discussion above that when the trial Court extended the time to the non-applicant defendant, it acted within the orbit of the law. It did not exceed the jurisdiction vested in it nor it failed to exercise the jurisdiction vested in it. In absence of any jurisdictional error, this revision has no force and is, accordingly, dismissed. Parties are directed to bear their own costs.