Andhra HC (Pre-Telangana)
Dr. H.C. Upadhya vs Mrs. A.R. Rustom Fram And Ors. on 7 December, 2005
Equivalent citations: 2006(2)ALD701, 2006(2)ALT170
ORDER T. Ch. Surya Rao, J.
1. The instant revision petition is directed against the order dated 21-07-2004 passed by the learned III Junior Civil Judge, City Civil, Hyderabad, in I.A.No.114 of 2004 in O.S.No. 4089 of 2003.
2. At the stage of admission, the learned Counsel appearing for the respondents had taken notice and addressed arguments for the final disposal of the revision petition.
3. The revision petitioner is the defendant in the suit. The respondents filed the suit for recovery of possession. The suit was decreed ex parte The petitioner, therefore, filed I.A.No.1171 of 2003 seeking to set aside the exparte decree under Order 9, Rule 13 of the Code of Civil Procedure (for brevity 'the Code'). After having heard on either side, the Court below allowed that application on 21-01-2004 on the condition of the petitioner paying a sum of Rs,1,000/- towards costs within 8 days from the date of that order, On the premise that on account of the sad demise of the grand mother of the petitioner's counsel, the counsel could not deposit the amount within the time and that despite the tragedy the counsel rushed to the Court and offered the amount of Rs. 1,000/- to the counsel of his adversary who refused to receive the same and that when the matter was brought to the notice of the Court, the Court advised the counsel to file a petition seeking leave to deposit the costs in the legal aid section, the petitioner filed I.A.No.114 of 2004 seeking permission of the Court to deposit the amount pursuant to the conditional order passed earlier. That application having been dismissed under the impugned order, the petitioner is now seeking to assail the same.
4. The Court below passed a cryptic order while dismissing the I.A.No.114 of 2004, the order is to the following effect:
Heard both sides. There is no reasonable ground to allow the petition. The Court passed order conditionally, but the petitioner failed to comply the same. The petition is dismissed without costs.
5. Obviously the conditional order was passed on 21-01-2004 while allowing the application in I.A.No. 1171 of 2003 filed by the petitioner seeking to set aside the ex parte decree. The conditional order directed the defendant to deposit costs within 8 days from the date of that order. In ordinary course, therefore, the petitioner should have deposited the amount on or before 29-01-2004. The case of the petitioner was that there was a tragedy in the house of his counsel and despite the same, he rushed to the Court on 30-01-2004 and offered the amount to the counsel of the adversary who refused to receive the same. Obviously the application seeking leave was filed on 31-01-2004 i.e., two days after the expiry of the conditional order. The ground that the applicant could not deposit the amount within the time on account of the tragedy in the house of the counsel of the petitioner seems to be reasonable and, in my considered view, affords sufficient cause to exercise the discretion of the Court and permit the petitioner to deposit the amount. The Court below obviously failed to appreciate the said ground. It has neither accepted nor rejected the same. The impugned order, which is bereft of any reason, is liable to be set aside on that ground itself.
6. The learned Counsel appearing for the respondents raised an objection that since the application had been filed by the petitioner beyond the date of expiry of the conditional order, the Court could not enlarge the time under Section 148 of the Code.
7. The short point that falls for determination is as to whether an application seeking enlargement of time could be maintained even after the date of expiry of the conditional order.
8. To buttress the contention that such application should precede the date of expiry of the conditional order, the learned Counsel appearing forthe respondents seeks to place reliance upon a Division Bench Judgment of this Court in P. Nasar Saheb v. P. Nabi Saheb AIR 1957 A.P. 780 it was held inter alia therein that the Court had power to enlarge time under Section 148 of the Code only during the currency of the order and when once the order had become defunct, no question of extending the time under that order would arise.
9. In Mahanth Flam Das v. Ganga Das a three Judge Bench of the Apex Court had considered the provisions of Sections 148, 149 and 151 of the Code. That was a case where during the pendency of the appeal before the High Court, having realised that the Court fee paid in the suit and the appeal as well was not proper, the plaintiff/appellant was directed to pay deficit court fee in the suit as well as appeal within three months from the date of intimation of the order to the counsel, lest the appeal would stand dismissed. The counsel was informed on 08-04-1954 about the order of the Court and the Court fee was to be paid on or before 08-07-1954. On 08-07-1954 the appellant filed an application requesting the Court to permit him to pay an amount of Rs. 14,000/-immediately and the balance within one month thereafter. The High Court dismissed that application on the premise that the appeal stood already dismissed, as the condition was not complied with. Therefore, the proper remedy must be only to review and when a review petition was sought to be filed, that too ended in dismissal. The Apex Court set aside that order and held thus:
These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding even though a final order had been passed.
Although that was a case where the application seeking extension of time was filed on the date on which the order was to expire, the quintessence of the Judgment shows that the conditional order passed under the provisions of the Code is in essence in terrorem so that dilatory litigants might put themselves in order and avoid delay and such order does not completely estop a Court from taking note of events and circumstances which happen within the time fixed. The learned Counsel appearing for the respondents seeks to distinguish the said Judgment on the ground as discussed hereinabove. That application in that case was filed on the last day on which the order was to expire. But the spirit of the Judgment shall have to be seen.
10. Yet another Division Bench of this Court in Gattu Gafoor Saheb v. B. Jakkanna 1970 (1) ALT 291 held that the Court had power to extend in exercise of its inherent powers even after the expiry of the period for complying with the direction relating to payment of costs and not with standing that the petition itself for revoking the said was dismissed if it felt satisfied that the petitioner was unable to pay the costs within the time allowed to him for reasons beyond his control. The Division Bench placed reliance upon the Judgment of the apex Court in Mahanth Ram Das's case (referred to 2 supra). Even this Judgment was sought to be distinguished by the learned Counsel appearing for the respondents on the ground that the main proceeding was pending before the Court and, therefore the Court had not become functus offcio and could consider such application seeking extension of time albeit filed even after the expiry of the time fixed conditionally.
11. In Andhra Rice Mill, Hyderabad v. Bellam Chanchaiah and Co. 1968 (2) ALT 115, a learned single Judge of this Court had taken the view that under Section 148 of the Code extension of time could be granted even on an application asking for it but filed after the relevant date of payment fixed by the conditional order and even though that conditional order said that the petition would stand dismissed if the payment was not done on or before the date indicated therein.. The learned Judge placed reliance upon the Judgment of the Apex Court in Mahanth Ram Das's case (2 supra).
12. In Kishwari Begum v. Quadri Begum 1977 (1) APLJ 60 a Division Bench of this Court held thus.
Section 148 C.P.C does not contain any words of limitation to indicate that the power granted to the Court to extend the time can be exercised only during the pendency of the proceedings before it or that an application for extension should be filed before the expiry of the period fixed by its order. It merely empowers the Court to enlarge the period prescribed by it for doing of any act, from time to time, in its discretion, even though the period originally fixed has expired. It is a procedural provision and it should be interpreted so as to allow the Court to meet the several eventualities, arising from time to time to do justice between the parties, and not in such a narrow manner as to stifle its powers which may result in defeating the ends of justice. Apart from Section 148, Section 151 of the Code recognise the inherent power of the Civil Court to pass all such orders as may be necessary for meeting ends of justice or to prevent the abuse of the process of the Court. Procedure is a means to an end and not an end in itself.
The Judgment of the Apex Court in Mahanth Ram Das's case (2 supra) again had been relied upon in the said Judgment and the Division Bench held that having regard to the said Judgment of the Apex Court the earlier Division Bench Judgment of this Court in P.Nasar Saheb's case (referred to 1 supra) was no longer a good law.
13. Recently a learned single Judge of this Court in M.A. Mikheed v. C. Pandurangam held that the Court had jurisdiction under Section 148 of the Code to enlarge time in its discretion if sufficient cause was shown after expiry of the time stipulated by the court even in cases where a default clause or a stipulation of no further extension were incorporated in the order while granting time initially.
14. Very recently in Salem Advocate Bar Association v. Union of India a three Judge Bench of the Apex Court while quoting its earlier decision in Mahanth Ram Das's case (2 supra) held thus:
We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the Court. The rigid operation of the Section would lead to absurdity. Section 151 has therefore to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act, which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the Court for performance of an act prescribed or allowed by the court.
15. As discussed hereinabove, the procedural orders although peremptory in nature are in essence in terrorem so that dilatory litigants might put themselves in order and avoid delay but such orders do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. If such circumstances are convinced, they can certainly be taken into consideration by the Courts to subserve the ends of justice and the Courts can pass appropriate orders regardless of the fact that application seeking extension of time has not preceded the date of expiry of the conditional order. Therefore the contention of the learned Counsel appearing for the respondents that the application could not have been entertained even otherwise having regard to the fact that it had come to be filed after the expiry of the date fixed in the conditional order inter alia. merits no consideration.
16. For the above reasons, the Civil Revision Petition is allowed at the threshold and the impugned order is hereby set aside. Consequently I.A.No. 114 of 2004 on the file of the III Junior Civil Judge, City Civil Court, Hyderabad stands allowed. The petitioner is permitted to deposit the amount on or before 31st December 2005. No order as to costs.