Madras High Court
Kumarasamy vs Palaniyammal on 27 November, 2014
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27-11-2014 (Orders reserved on 17-11-2014) CORAM: THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU C.R.P.No.1838 of 2014 & M.P.No.1 of 2014 1. Kumarasamy 2. Venkatesan .. Petitioners Vs. Palaniyammal .. Respondent Civil Revision Petition filed under Section 115 CPC against the fair and decretal order dated 22.11.2013 in I.A.No.176 of 2012 in I.A.No.332 of 2011 in O.S.No.236 of 2010 on the file of the Additional District Munsif Court, Tiruchengode. For petitioners : Mr.P.Valliappan For respondent : Mr.N.Manokaran ORDER
The plaintiffs are the petitioners herein. They are aggrieved by the order of the trial Court made in I.A.No.176 of 2012 in extending the time for payment of costs, as ordered in I.A.No.332 of 2011 in O.S.No.236 of 2010.
2. The plaintiffs filed the said suit on the file of the Additional District Munsif Court, Tiruchengode, for declaration and permanent injunction. On 28.2.2011, the third defendant in the said suit, who is the respondent herein, was set ex-parte. Therefore, she filed I.A.No.332 of 2011 under Order 9 Rule 13 CPC to set aside the ex-parte order. In that application, an order came to be passed on 5.9.2011, allowing the application subject to condition to pay a sum of Rs.500/- to the plaintiffs on or before 9.9.2011. It was also observed therein that in default, the petition would stand dismissed without any further consideration. The said costs were not paid by the third defendant within the time stipulated and however, she filed I.A.No.176 of 2012 on 4.1.2012, under Section 148 read with 151 CPC to extend the time. It is the case of the third defendant therein that she was affected by Jaundice, and therefore, she could not comply with the condition within the stipulated time.
3. The said application was resisted by the plaintiffs by contending that in pursuant to the default committed by the third defendant, I.A.No.332 of 2011 itself stood dismissed, and therefore, without restoring the said application, the third defendant cannot seek the relief of extension of time.
4. The trial Court allowed the application filed by the third defendant by exercising its power under Sections 148 and 151 CPC, taking into consideration of the facts and circumstances stated therein and also by imposing further costs of Rs.1,500/- payable by the third defendant to the plaintiffs. Challenging the said order, the plaintiffs have filed the present Civil Revision Petition.
5. Heard Mr.P.Valliappan, learned counsel for the petitioners and Mr.N.Manokaran, learned counsel for the respondent and perused the materials placed before this Court.
6. Learned counsel for the petitioners submitted that when I.A.No.332 of 2011 was allowed, subject to payment of costs within the stipulated time, with further condition that the I.A. will stand dismissed without further reference, if costs are not paid within the stipulated time, the third defendant cannot seek for extension of time, when the said I.A.No.332 of 2011 itself is deemed to have been dismissed by the time the application for extension of time was filed by the third defendant. Therefore, the learned counsel contended that the trial Court has no power to extend the time, by exercising the power under Sections 148 and 151 CPC. In support of his submissions, he relied on the following decisions of this Court:
(a) 2013 (4) LW 626 (G.Kesavan Vs. B.C.Raman);
(b) 2012 (5) CTC 857 (K.Rajendran Vs. S.Nagarajan) and
(c) 2014 (3) CTC 757 (S.Kamalam Vs. Rajamani).
7. Per contra, learned counsel for the respondent submitted that even after expiry of the time granted in the original order, the Court has power to extend the time by exercising the power under Section 148 read with 151 CPC, and therefore, the subsequent deemed dismissal of the application for default committed by the third defendant, cannot stand in the way of the trial Court in considering the application for extension of time. In support of his submissions, he relied on the decision of the Honourable Supreme Court reported in 2010 (8) SCC 546 (D.V.Paul Vs. Manisha Lalwani) and a decision of a Division Bench of this Court reported in 2006 (3) CTC 418 (Gowri Ammal Vs. Murugan).
8. The point for consideration in this Civil Revision Petition is as to whether the Court is having power under Section 148 CPC to extend the time already granted, even after its expiry and as to whether the deemed dismissal of the application consequent upon such default, would stand in the way for considering the application for extension of time.
9. It is not in dispute that the third defendant was set ex-parte on 28.2.2011 and such order was subsequently set aside in I.A.No.332 of 2011, subject to a direction to the respondent/third defendant to pay a sum of Rs.500/- as costs to the petitioners/plaintiffs, on or before 9.9.2011. It is also true that while making such order, the trial Court has made it clear that failure to comply with the said order, would result in dismissal of the application in I.A.No.332 of 2011. No doubt, the respondent/third defendant has not complied with the order within the time stipulated. However, it is contended by her that she was unwell due to Jaundice and therefore, immediately after recovering from the same, she wanted to comply with the order and for such purpose, she wanted the time, already granted, to be extended. It is true that when the respondent has made such an application, the time granted has already expired. Therefore, it has to be seen as to whether the Court has got power under Section 148 CPC to extend the time even after its expiry.
10. The said issue is no more res-integra, in view of the categorical decision rendered by the Honourable Supreme Court, reported in 2010 (8) SCC 546 (D.V.Paul Vs. Manisha Lalwani), wherein, in paragraphs 26 to 32, it was observed as follows:
"26. Insofar as the first aspect is concerned Section 148 CPC, in our opinion, clearly reserves in favour of the court the power to enlarge the time required for doing an act prescribed or allowed by the Code of Civil Procedure. Section 148 of the Code may at this stage be extracted:
"148. 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 not exceeding thirty days in total, even though the period originally fixed or granted may have expired."
A plain reading of the above would show that when any period or time is granted by the court for doing any act, the court has the discretion from time to time to enlarge such period even if the time originally fixed or granted by the court has expired. It is evident from the language employed in the provision that the power given to the court is discretionary and intended to be exercised only to meet the ends of justice.
27. Several decisions of this Court have explained the ambit and scope of the powers exercisable under Section 148 CPC. In Mahanth Ram Das Vs. Ganga Das (AIR 1961 SC 882 : 1961 (3) SCR 763), this Court observed: (AIR pp. 883-84, para 5) "5. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on 13-7-1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from 8-7-1954. How undesirable it is to fix time peremptorily for a future happening which leaves the court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. 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."
28. To the same effect is the decision of this Court in Chinnamarkathian Vs. Ayyavoo (1982 (1) SCC 159), where this Court declared that the scope and exercise of the jurisdiction to grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. The Court also called in the principle of equity that when circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the court retains to itself the jurisdiction to re-examine the alteration or modification which may necessitate extension of time.
29. The following passage from the decision in Chinnamarkathian case (Chinnamarkathian Vs. Ayyavoo (1982 (1) SCC 159) is apposite: (SCC p. 168, para 15) "15. It is a well-accepted principle statutorily recognised in Section 148 of the Code of Civil Procedure that where a period is fixed or granted by the court for doing any act prescribed or allowed by the Code, the court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may expire. If a court in exercise of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. Passing a composite order would be acting in disregard of the jurisdiction in that while granting time simultaneously the court denies to itself the jurisdiction to extend time. The principle of equity is that when some circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the court retains to itself the jurisdiction to re-examine the alteration or modification of circumstances which may necessitate extension of time. If the court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys."
30. Reference may also be made to the decisions of this Court in Jogdhayan Vs. Babu Ram (1983 (1) SCC 26), Johri Singh Vs. Sukh Pal Singh (1989 (4) SCC 403) and Ganesh Prasad Sah Kesari Vs. Lakshmi Narayan Gupta (1985 (3) SCC 53).
31. In Salem Advocate Bar Assn. Vs. Union of India (2005 (6) SCC 344) this Court had an occasion to examine whether the restriction placed by the amendment of Section 148 on the power of the court to grant extension of time beyond 30 days was reasonable. This Court held that a power that is inherent in the court to pass orders that it considers necessary for meeting the ends of justice and preventing abuse of the process of the court cannot be taken away by putting an upper limit on the period for which an extension can be granted. Extension beyond the maximum period of 30 days was accordingly held permissible in the following words: (SCC p. 372, para 41) "41. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the court has no inherent power to extend the time beyond 30 days is the question. 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."
32. It is not in the light of the above decisions open to the respondent to argue that a court can fix time for the doing of an act like making of a deposit, in the instant case, but has no jurisdiction to extend the said period even when a case for such extension is clearly made out. The power to fix the time for doing of an act must in our opinion carry with it the power to extend such period, depending upon whether the party in default makes out a case to the satisfaction of the court who has fixed the time. There is nothing in Section 148 CPC or in any other provision of the Code to suggest that such a power of extension of time cannot be exercised in a case like the one at hand. The argument that the power to extend time cannot be exercised where the act in question is stipulated in a conditional decree has not impressed us. We see no reason to draw a distinction depending on whether the prayer for extension is in regard to a conditional order or a conditional decree. The heart of the matter is that where the court has the power to fix time and that power is not regulated by any statutory limits, it has in appropriate cases the power to extend the time fixed by it. It is common ground that neither CPC nor the provisions of the M.P. Accommodation Control Act place any limitation on the power of the court in case like the one in hand."
11. Further, in a decision of a Division Bench of this Court reported in 2006 (3) CTC 418 (Gowri Ammal Vs.Murugan), it is specifically observed that the power under Section 148 CPC can be exercised, even if the original period fixed has expired. After following the decision of the Honourable Supreme Court reported in 2005 (6) SCC 344 (Salem Advocate Bar Association.T.N. Vs. Union of India), the Division Bench has observed in paragraphs 16 to 19 as follows:
"16. The above decision would make it clear that the Court cannot be made helpless or powerless where the upper limit fixed under Section 148 cannot take away the power of the Court under Section 151 to pass orders, as may be necessary, for the ends of justice or to prevent abuse of process of Court. The rigid operation, as contained in Section 148, without considering Section 151, as laid down by the Supreme Court, would lead to absurdity. Therefore, both the Sections have to be read together, in order to find out, whether the Petition for extension of time can be entertained or not.
17. 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.
18. In the light of the principles laid down by the Supreme Court in Salem Advocate Bar Association, T.N. Vs. Union of India, 2005 (6) SCC 344, Sections 148 and 151, C.P.C. allow extension of time, even if the original period fixed has expired. Similarly, Section 149 also is equally liberal in this respect.
19. So, a conjoint reading of Sections 148, 149 and 151, C.P.C. would make it clear that the Court has power to extend time beyond the stipulated period, when sufficient cause exists or events pointed out to the Court for non-compliance of the order are beyond the control of the party, as the object of the Code is not to promote failure of justice."
12. Going by the above decisions of the Honourable Supreme Court and the Division Bench of this Court, it is clear that the Court has power to extend the time even after expiry of the original period. Apart from such proposition of law, it is also made clear by the Honourable Supreme Court in D.V.Paul's case (2010 (8) SCC 546) (cited supra) that the curtailment of 30 days alone for extension under Section 148 CPC, is also not correct, and on the other hand, it is the observation of the Honourable Supreme Court that the power that is inherent in the Court to pass orders for meeting the ends of justice and preventing the abuse of process of the Court, cannot be taken away by putting an upper limit or limiting the period for which the extension can be granted.
13. Thus, from the above decisions, two things emerge. Firstly, the time can be extended even after its expiry. Secondly, the Court cannot be restricted in granting the period of extension of time.
14. Keeping the above principles in mind, if we look into the facts and circumstances of the present case, it would show that the application filed after the expiry of the time, is certainly entertainable and the Court below has rightly entertained. Therefore, it cannot be contended that the trial Court ought not to have entertained the application. When once the Court has the power to extend the time for performing the action as directed in the original order, it goes without saying that the original order itself is revived and therefore, the consequential dismissal or deemed dismissal also gets restored to its original position. If a power is conferred to extend the time even after its expiry, exercise of such power and passing an order thereon, would over-ride the consequential order or orders. Otherwise, it is meaningless to confer such power. Hence, restoration of the original order becomes automatic, once the time is extended. Such restoration is only technical in nature and does not require an adjudication.
15. Learned counsel for the petitioners relied on a decision of this Court reported in 2013 (4) LW 626 (G.Kesavan Vs. B.C.Raman). The facts and circumstances of the said case are totally different and distinguishable. In that case, the petitioner therein was the second plaintiff in a suit for specific performance and he filed an application under Sections 148 and 151 CPC seeking for extension of time to deposit the sale consideration as per the decree passed in the said suit. The said application was rejected by the trial Court and aggrieved by the same, he filed a Civil Revision Petition before this Court. This Court found that the petitioner himself has failed to perform his part of the decree within the time stipulated and allowed the said performance to be barred by limitation thereafter. Therefore, this Court has found that the enlargement of time beyond the period of limitation under Section 148 CPC cannot be granted. Moreover, the decision of the Apex Court in D.V.Paul's case (cited supra) and the Division Bench decision of this Court in Gowri Ammal's case (cited supra), were not cited therein. In any event, as the facts of the present case are totally different, the above decision of this Court reported in 2013 (4) LW 626 (cited supra) is not helping the petitioners in any manner.
16. The other decision reported in 2014 (3) CTC 757 (S.Kamalam Vs. Rajamani), relied on by the learned counsel for the petitioners, has not dealt with the power of the Court under Sections 148 and 151 CPC. On the other hand, the matter in issue therein was in respect of an application under Order 9 Rule 7 CPC. Therefore, the said decision is not applicable to the facts and circumstances of the present case and therefore, the petitioners cannot rely upon the same.
17. The other decision of this Court, relied on by the learned counsel for the petitioners, reported in 2012 (5) CTC 857 (K.Rajendran Vs. S.Nagarajan) is also factually distinguishable. In that case, the plaintiff wanted to pay the deficit Court fee and therefore, he filed an application only under Section 148 CPC for condonation of delay in re-presenting the plaint with deficit Court fee. This Court has found that no application was filed under Section 149 CPC for payment of deficit Court fee along with the application under Section 148 CPC, and therefore, the plaintiff therein was not entitled to claim extension of time or condonation of delay in paying the deficit Court fee without there being any proper application filed under Section 149 CPC. Therefore, the facts of the present case are totally different and distinguishable, and the said decision is not helping the petitioners in any manner.
18. Considering all the above facts and circumstances of the case, I am of the view that the impugned order of the Court below in extending the time, does not warrant any interference. Accordingly, the Civil Revision Petition fails and the same is dismissed. No costs. The Miscellaneous Petition is closed.
27-11-2014 Index: Yes Internet: Yes cs To The Additional District Munsif, Tiruchengode.
K.RAVICHANDRABAABU,J cs Order in C.R.P.No.1838 of 2014 27-11-2014