Andhra HC (Pre-Telangana)
Gandeay Shravan Kumar vs D. Srinivasulu (Died) Per Lrs. And Ors. on 29 July, 2003
Equivalent citations: 2004(1)ALD639
ORDER C.Y. Somayajulu, J.
1. This is an application to condone the delay of 1297 days in representing the C.M.A.
2. The learned Counsel for petitioner gave his affidavit in support of this application, explaining the reasons for the delay.
3. When the petition came up for orders, I entertained a doubt as to the maintainability of the petition for condonation of delay of more than thirty days in view of amendment to Section 148 CPC, which reads as follows:
"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."
4. Since the matter is of general importance, on my request Sri Challa Sitaramayya, learned Senior Counsel, and Sri V.L.N.G.K. Murthy, Advocate, readily accepted to act as amicus curiae to assist the Court in deciding the question.
5. The contention of Sri Challa Sitaramayya, learned Senior Counsel, is that Section 148 CPC applies to cases where CPC itself prescribes the time like Order VI Rule 18, Order VII Rule 11, Order VIII Rule 9, Order XXI Rule 17, Order XXV Rule 2 and Order XIV Rule 16 and that it is -true time which is fixed by the CPC should not be extended beyond 30 days, in view of the amendment to Section 148 CPC. It is his contention that since the provisions of Limitation Act and C.P.C. have to be read together, as they are statutes relating to procedure, as held by a Full Bench of Madras High Court in Kanda Swami Pillai v. Kannappa Chetty, , cited with approval in Vidyacharan v. Khubchand, , the provisions of Section 5 of Limitation Act can be taken aid of in this type of petitions, because limitation prescribed by the Code should be deemed to be 'Special Law' for the purpose of Limitation Act, and since C.P.C. does not specifically exclude the applicability of Section 5 of the Limitation Act. He relied on Kaushalya Rani v. Gopal Singh, , State of West Bengal v. Kartick Chandra Das, , Union of India v. Popular Construction Co., , and Krishna Kumar v. J.N. Bhan, , in support of his said contention. Relying on Mahanth Ram Das v. Ganga Das, , he contended that Sections 148, 149 and 151 clothe the High Court with ample power to do justice to a litigant if sufficient cause is made out for extension of time and so in spite of the amendment to Section 148 CPC the Court still has, in proper cases, power to extend the time fixed for performance of an act even beyond 30 days.
6. The contention of Sri V.L.N.G.K. Murthy is that enlargement of time is different from condonation of delay, as contemplated by Section 5 of Limitation Act. It is his contention that in this case since time for representation of the proceedings is not fixed by the Court, or by the Code, Section 148 CPC has no application to the facts of this case, more so because fixation of time for representation is not a judicial order, but is in the nature of executive instruction by an Officer in the scrutiny section. Referring to Section 35B, Order IX Rule 7, Order IX Rule 13, Order XXI Rule 89, Order XXI Rule 92 and Order VIIIA Rule 1 of CPC, he contended that since those provisions specifically empower the Court fixing date for performance of the acts mentioned therein, provisions of Section 148 CPC may be attracted to the time fixed by the Court in such situations. Relying on the following observation in Kanduri Sahu v. Nidhi Sahu, .
"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."
he contended that if a proceeding returned is represented beyond the time fixed by the office, it is Section 151 C.P.C., but not Section 148 CPC, that would apply, and since no fetters on the power of the Court is fixed by Section 151 CPC, depending on the facts and circumstances of each case Court can, in exercise of its discretion, either condone or refuse condonation of the delay that occurred in representation of the proceedings.
7. Sri Kota Subba Rao, Sri K.L.N. Rao, Smt. Anasuya and other learned Advocates, who also assisted the Court relying on Shafiq Ahmed v. P.D. Suguna, 2002 (2) An.WR 492, Sitaraman v. Pattabhiraman, AIR 1958 Mad. 453, L.P. Jain v. Nandakumar, , Mohan Lal v. Hari Prasad Yadav, , and Kalipada Das v. Bimal Krishna Sen Gupta, , contended that in spite of amendment to Section 148 CPC this Court has the power to extend time beyond 30 days for representation of the returned proceedings.
8. In Shafiq Ahmed case (supra) the learned Judge was considering the question whether the petition-seeking enlargement of time should be filed within thirty days. The question whether the Court has power to enlarge time beyond thirty days did not come up for consideration before the learned Judge. The learned Judge, on the basis that the certified copies of the order were received beyond the time fixed by the Court, held that the non-compliance with the conditional order passed by the Court was beyond the control of the party and so the petition filed seeking extension beyond the time granted is maintainable.
9. There is no provision in the CPC, which makes a reference to the power of the Court to return of grounds of appeal for rectification of defects. Presentation of appeals and other proceedings in the High Court and their postings are governed by the A.P. High Court Appellate Side Rules. Part-I of the Appellate Side Rules reads:
"By virtue of powers conferred by the enactments set out in Appendix I hereto, and of all other powers hereunto enabling, it is ordered that the following Rules of Practice and Procedure shall be observed in the High Court of Judicature, Andhra Pradesh, in all causes and matters coming before the said Court on the Appellate Side and may be cited as "The Rules of the High Court of Judicature, Andhra Pradesh, Appellate Side"."
Appendix I reads:
"Enactments referred to in the Introductory Rule
1. 24 and 25 Vic., C. 104-Sections 13 and 14.
2. The Letters Patent of the High Court of Judicature at Madras 1865.
3. The Code of Civil Procedure, 1908 and the Acts amending the same.
4. The Constitution of India.
5. The Andhra State Act, 1953 (Central Act, XXX of 1953)."
Rule 12 of the Appellate Side Rules, contained in Chapter-II, deals with the powers of the Registrar, which are subject to any special or general order made by the Chief Justice. Rule 12(i)(2) reads:
"To require any memorandum of appeal, petition, application, or other proceedings presented to the Court or to Registrar to be amended in accordance with the procedure or practice of the Court or to be represented after such other requisition, as the Registrar is empowered to make, has been complied with:
Provided that the Registrar shall, when so required, refer the matter to the Court."
Thus, return of a memorandum of appeal, is not made as per any of the provisions in the C.P.C., but is made under the Appellate Side Rules, by the Registrar or Deputy Registrar etc., concerned.
10. One of the contentions raised is that in the Courts subordinate to the High Court, the Presiding Officer himself fixes the time for compliance at the time of return, and initials the endorsement of return but in the High Court it is the Registrar, but any Judge that fixes time for representation and initials the endorsement of return and so it is to be taken that it is the Registrar, but not the Court that fixes the time within which the proceedings have to be represented and for that reason also Section 148 CPC does not apply to petitions for condonation of delay in representation of the returned proceedings. I am unable to agree with the said contention. In subordinate Courts, where there is plurality of Officers, the Principal Officer in charge of the administration initials the endorsements of return made by the Administrative Officer of the Court. In High Court the Chief Justice is the head of Administration. Chief Justice delegated the power of initialing the endorsement of returns of the proceedings to the Registrar or Deputy Registrar. So the Registrar, while initialing the endorsement of return acts as the delegate of the Chief Justice, but not in his individual capacity. When a delegate performs a duty entrusted to him by his Principal, the act done by him should be deemed to be the act done by his Principal. Therefore, the endorsement of return should be deemed to have been made by the Registrar or Deputy Registrar etc., for and on behalf of the Chief Justice, but is not made in his capacity of the Registrar or Deputy Registrar.
11. There is no provision in CPC, which prescribes the maximum period within which a returned proceeding should be represented into the Court. Therefore, I am of the opinion that Section 148 CPC would not apply to the cases of return of the appeals and other proceedings for compliance with the objections taken by the office, and delay in representation of those proceedings would be governed by Section 151 C.P.C., as held in Kanduri Sahu case (supra). So in spite of the fact that amended Section 148 C.P.C. limits the extension of time, in total, to a maximum period of 30 days, that time limit does not govern the representation of the returned proceedings for compliance with the objections taken by the Registry. In the circumstances I feel it not necessary to go into the question where Section 5 of Limitation Act can be taken aid of in this type of cases. The question as to whether there is valid ground for condonation of delay has to be decided on the facts and circumstances of each case depending on its merits.
12. I have great pleasure in placing on record my appreciation for the co-operation and assistance rendered by Sri Challa Sitaramayya learned Senior Advocate and Sri V.L.N.G.K. Murthy, and other Advocates, in deciding the question as to whether Section 148 CPC applies to petitions seeking enlargement of time for representation of the returned proceedings by the Registrar beyond the time fixed by it.
13. In view the fact that the delay in representing the proceedings is more than three years it is but appropriate to order notices to the respondents so that the petition can be decided on merits after, hearing both sides.
14. Issue notice to respondents. Learned Counsel for petitioner is permitted to take out personal notice to respondents by registered post, acknowledgment due, and file proof. Post on 9.9.2003.