Madras High Court
S. Ravindra Reddy vs K. Veerabhadrachari on 13 October, 1998
Equivalent citations: (1999)2MLJ251
ORDER S. M. Sidickk, J.
1. Heard both counsel.
2. The revision petition in C.R.P.No. 2602 of 1998 is directed as against the fair and decreetal order passed in I.A.No. 4264 of 1997 in O.S.No. 1701 of 1995 on 6.7.1998 on the file of 1st Assistant Judge, City Civil Court, Madras.
3. The revision petition in C.R.P.No. 2603 of 1998 is filed against the fair and decreetal order passed in I.A.No. 4263 of 1997 in O.S.No. 1701 of 1995 on 6.7.1998 by the very same Judge of the lower court.
4. The revision petition in C.R.P.No. 2604 of 1998 is filed as against the fair and decreetal order passed in I.A.No. 4266 of 1997 in O.S.No. 1701 of 1995 on 6.7.1998 on the file of the very same Judge of the lower court.
5. The revision petition in C.R.P.No. 2605 of 1998 is filed as against the fair and decreetal order passed in I.A.No. 4265 of 1997 in O.S.No. 1701 of 1995 on 6.7.1998 on the file of the very same Judge of the lower court.
6. The application in I.A.No. 4263 of 1997 referred to above was filed by the respondent/defendant herein under Section 151 of C.P.C. to restore the I.A.NO. 12039 of 1995, which was dismissed for default. The application in I.A.No. 4264 of 1997 was filed by the respondent/defendant herein under Order 37, Rule 4 and Section 151 of C.P.C. to set aside the exparte decree passed on 7.2.1997 in the above suit. The application in I.A.No. 4265 of 1997 was filed by the respondent/defendant herein under Section 148 of C.P.C. to extend the period for deposit of the day cost of Rs. 250 imposed by the lower Court. The application in I.A.No. 4266 of 1997 was filed by the respondent/defendant under Section 151 of C.P.C. to set aside the rejection of the unnumbered petition in SR.No. 22401 of 1995 and to restore the same.
7. So the main application is the petition in I.A.No. 4265 of 1997, which is an application filed by the respondent/defendant to extend the time for the deposit of the day cost of Rs.250 as ordered by the trial court, and the other applications are consequential petitions filed by the respondent/defendant to set aside the exparte decree and the like in the said suit.
8. After hearing the learned Advocates for both sides the point that arises for consideration in these four applications is whether the time granted by the lower court for the deposit of the day cost of Rs. 250 can be extended and whether all the four applications filed by the respondent defendant herein have to be allowed as done by the trial court.
9. Point: The learned Counsel for the revision petitioner/plaintiff contended that the respondent/defendant filed the application in I.A.No. 12039 of 1995 to condone the delay in filing the petition seeking leave to defend and a conditional order was passed directing the respondent/defendant to pay a day cost of Rs. 250 on or before 31.1.1997, and further time was granted by three days and even then the respondent/defendant did not deposit the day cost of Rs. 250, and it is a conditional order which has not been complied with by the respondent/defendant, and the conditional order has worked itself out, and the application filed by the respondent/defendant under Section 148 of C.P.C. beyond the period fixed cannot be entertained, and in those circumstances all these four revision petitions must be allowed, and the order passed by the trial court extending the further time for the payment of the day costs and other remedies must be set aside. In support of the above contention the learned Counsel for the revision petitioner relied on the decisions reported in ( .
10. In the decision of our Madras High Court reported Sitaraman v. Pattabhiraman , His Lordship Mr. Justice Balakrishna Ayyar, J. stated as follows:
Where the proceeding ceases to exist consequent upon a default clause provided in the order itself Section 148 of the Code can have no application. Where an order directing security to be furnished has a default clause, the court has no power to extend the time to furnish the security.
11. In the decision of our Madras High Court reported in Sukumaran v. Sulaiman Khan, 84 L. W. 385, His Lordship Mr. Justice Ramanujam, J. has laid down as follows:
Where the court passed a decree that the plaintiff was entitled to a declaration and in-junction provided he paid the contract amount on or before a particular date and failing which the suit will stand dismissed, and the plaintiff did not pay the amount and filed an application for extension after the expiry of that date. It was held that in this case the court has passed a final order in the suit and the court does not retain its control over the suit any further. In such cases it cannot be said that either Section 148 or Section 149 of C.P.C. could be invoked.
The suit has been disposed of on merits after trial and the plaintiff was given time for payment of the amount and in the default of such payment, the suit was directed to be dismissed. It is not possible to say that the time fixed under the conditional decree can be extended by the court after the default clause had operated. The remedy for the petition can only be by way of review or appeal.
12. In the decision of the Allahabad High Court reported in Nanak Chand v. Goswami , wherein His Lordship Mr. Justice S.N. Katju, J. observed as follows:
A court can pass a conditional order on an application under the rule for setting aside an exparte order and where such an order is passed and the condition is not fulfilled within the time specified therein, the application automatically stands dismissed.
13. The decision of the Allahabad High Court , will have no application to the facts of the present case because the learned Judge of the Allahabad High Court did not consider the question as to whether Section 148 of C.P.C. can be invoked even after the expiry of the time specified in the conditional order passed, and therefore in my view the decision of the Allahabad High Court will have no application to the facts of the present case.
14. Now turning to the two decisions of our Madras High Court 84 L. W. 385, it seems that they are no longer good law in view of the pronouncement of the Supreme Court , which was later followed by our Madras High Court in the decisions reported to 80 L W. 47 (J.S.) and 1973 M.L.J. 5 (NRC.) and the subsequent pronouncement of the Supreme Court in the decision reported in 96 L. W. 110. 15. In the decision reported in Mahanth Ram Das v. Ganga Das , the Supreme Court laid down the law in the following words:
The High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment. Section 148 in terms allowed extension of time, even if the original period fixed had expired and Section 149 was equally liberal.
15. In the decision of our Madras High Court reported in Kuppa Mandiri v. Munusamy Mandhiri 80 L. W. 47, His Lordship Mr. Justice Ramaprasada Rao, J. (as he then was) held as follows:
The court made an order that by consent a conditional order was being passed that on the petitioner paying a particular sum within two weeks, the delay shall be excused, failing which the application will stand dismissed and posted the case for being called. On the day when it was called, an application was filed to extend the time. It was contended for the other side that the court had no power to extend the time as the order has worked itself out. It was held that the court had powers to extend the time. It cannot be contended that the order was passed by consent and can be varied only by subsequent consent. Courts are not helpless in applications of the kind under consideration and under Section 151 of the Civil Procedure Code, the court has power to enlarge the time originally fixed and to grant further indulgence to the parties in default, if really the case merited such indulgence. In exercise of the inherent powers of courts, civil courts have power to enlarge such time originally prescribed, and though apparently such order ex facie worked themselves out.
16. In the decision of our Madras High Court reported in Periaswami Achari v. President, Illuppur Panchayat Board 1973 M.L.J. 5 (NRC.) : 86 L. W. 258, His Lordship Mr. Justice Kailasam, J. (as he then was) stated as follows:
Section 148 of the Code of Civil Procedure deals with the power of the court to grant time. The working of the section allows extension of time even if the original period fixed has expired. It is not necessary that the extension of time should be asked for before the expiry of the period.
17. The same principles were reiterated by the Supreme Court in another decision reported in Smt. Periyakkal and Ors. v. Smt. Dakshyani 96 L.W. 110 (summary cases extracts) wherein it was observed as follows:
The time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to extend time in appropriate cases. Of course time would not be extended ordinarily nor of 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. Nothing said in Hakamchand's case militates against this view.
18. It follows from the later decisions of our Madras High Court and the pronouncements of the Supreme Court that in conditional order the court has got every power to extend the time for deposit of the cost under Section 148 of C.P.C. even after the expiry of the period mentioned in the , conditional order. In the present case the respondent/defendant filed an application in I.A.NO. 12309 of 1995 under Section 148 of C.P.C. to condone the delay in filing the petition seeking leave to defend. The trial court passed an order on 2.1.1997 in I.A.No. 12039 of 1995 stating that the delay will be condoned on payment of day cost of Rs. 250 to the plaintiff on or before 31.1.1997 and call on 3.2.1997. On 3.2.1997 a memo was filed by the defendant's counsel stating that the day cost of Rs. 250 was tendered to the counsel for the plaintiff, who obliged not to accept the same on the ground that the revision petitioner/plaintiff is preferring a civil revision petition as against the order passed on 2.1.1997. Consequent to the memo filed by the defendant's counsel on 3.2.1997 the lower court passed a further order on 3.2.1997 stating that the respondent/defendant is directed to deposit the cost of Rs. 250 into court within three days and then directed to call the application on 7.2.1997. On 7.2.1997 when the matter came up once again before the learned Judge of the trial court, it was brought to the notice pf the learned Judge of the trial court that the day cost of Rs.250 was not deposited, and as a result the application in I.A.No. 12039 of 1995 was-dismissed and an exparte decree was passed. Consequently all the four applications in I.A.Nos.4263 to 4266 of 1997 in O.S.No. 1701 of 1995 were filed to set aside the exparte decree, to extend the time for payment of the day cost and other relief and all the four applications were heard together by the trial Judge, and all the four applications were allowed against which these four civil revision petitions are filed by the revision petitioner/plaintiff.
19. The above facts are not seriously disputed by both the counsel on record. So it follows from the decision of the Supreme Court and the later decision of our Madras High Court that even after the expiry of the period fixed in the conditional order, the court has got power to extend the time for payment of the cost under Section 148 of the Civil Procedure Code. So the first contention raised by the learned Counsel for the revision petitioner/plaintiff fails and it is not entitled to any acceptance in view of the pronouncement of the Supreme Court and the later decisions of our Madras High Court.
20. The second contention raised by the learned Counsel for the revision petitioner/plaintiff is that the respondent/defendant, who has filed an affidavit and his counsel who has filed a supporting affidavit, did not get into the witness box to speak to the allegations made in their affidavits, and there is no evidence worth its name in respect of the allegations made in their affidavit, and in those circumstances the orders passed by the lower court in all these four applications must be set aside. In support of the above contention, the learned Counsel for the revision petitioner/ plaintiff has drawn my attention to the decision of Allahabad High Court reported in A.I.R. 1936 All. 671 and Rajasthan High Court .
21. In the decision reported in Inderjit Singh v. Gir Raj Singh, A.I.R. 1936 All 671, it was held as follows:
A mere affidavit is not evidence, and the person making the affidavit is to be subjected to cross-examination, if it is to be used likewise.
22. In the decision reported in Mohan Prakash v. Gulab Chand , it was stated as follows:
The mere reason of an "inadvertance" cannot be treated as sufficient for extending time in the case of peremptory order, otherwise preemptory orders would lose their desired effect.
23. The above contentions are untenable and the decisions relied on by the learned Counsel for the revision petitioner/plaintiff on this aspect will not be helpful to support his contention for the following reasons. The respondent/defendant has filed an affidavit in I.A.No. 4264 of 1997 in the above suit to restore the I.A.No. 12039 of 1995, which was dismissed by the trial court on 7.2.1997 for non-deposit of the day cost of Rs. 250 and to restore the unnumbered I.A. in SR. No. 22401 of 1995, which was rejected by an order of the same day viz., 7.2.1997 and to set aside the ex parte decree dated 7.2.1997 passed in the above suit in O.S.No. 1701 of 1995 and for fresh disposal on merits. In the said affidavit in para 4, the respondent/defendant would state as follows:
I state that one of my advocate Mr. A.M. Srikanth was entrusted with the work of depositing the costs into court but due to oversight and pressure of work, he failed to deposit the costs into court. I state that this failure to deposit the costs into court was neither wilful nor wanton, but for the bona fide reasons stated above and he is also filing a supporting affidavit to that effect into this Hon'ble Court along with LA.
24. These allegations in para 4 of the affidavit filed by the respondent/defendant in I.A.No. 4264 of 1997 were not at all controverted by the revision petitioner/plaintiff in his counter-statement.
25. In the counter-statement in para 4 the respondent/plaintiff would state as follows:
The averments that he intended to deposit a sum of Rs. 250 as per the orders of the court, and the same could not be done due to over sight and pressure of work of Advocate Mr. A.M. Srikanth. No averment to attract the circumstances leading to cause oversight and pressure of work attributed to Mr. A.H. Srikanth, Advocate are not found in any one of the lines at paragraph No. 4 in para No. 2 of the affidavit. In the absence of such averments, the averments not depositing the costs into court and the pressure of work are evasive and imaginary. To attract the provisions to condone the delay under Section 151 of C.P.C. bona fide reasons must be explained. As stated supra over-sight and pressure of work, how he got over-sight and what are the cases listed for him must be explained. No such explanation had been submitted to attract the bona fide reasons. Hence the petition is liable to be dismissed in limine.
26. Thus a careful reading of the affidavit averments of the respondent/defendant as well as in the counter-affidavit of the respondent/plaintiff in para 4 in I.A.No. 4264 of 1997 would go to show that nowhere, the revision petitioner/plaintiff has denied that the averments in para 4 of the affidavit of the respondent/defendant are all false and untrue. Even the revision petitioner/plaintiff has not stated anything about the averments in the affidavit filed by the counsel who appeared for the respondent/defendant filed in support of the application of the respondent/defendant. In as much as the affidavit averments in para 4 of the affidavit of the respondent and the averments of the defendants counsel in his affidavit were not at all challenged, it is futile to contend that either the respondent/defendant or his counsel ought to have examined themselves as a witness before the trial court. In other words when there is no challenge about the averments made in para 4 of the affidavit of the respondent/defendant and the averments in the affidavit of his advocate who appeared in the lower court there is no necessity to examine any one of them in support of the affidavit averments.
27. On a perusal of the lower court's order, I find no illegality or irregularity committed by the trial court in allowing all the four applications filed by the respondent/defendant herein. The lower court has rightly pointed out that the delay in the deposit of the day costs can be condoned and the exparte decree can be set aside, and the respondent/defendant must be given an opportunity to contest the case and put forward his defence. It is also relevant to note that the suit is decreed exparte for the first time. In those circumstances I am of the view that all these four applications were rightly allowed by the trial court. Hence, I hold that the trial court was right in granting the time for the deposit of the day cost of Rs. 250 and allowing the four applications filed by the respondent/defendant, and these four civil revision petitions are devoid of merits, and the same have to be dismissed, and the fair and decreetal order passed by the trial court on 6.7.1998 in I.A.Nos.4263 of 1997 to 4266 to 1997 in O.S.No. 1701 of 1995 have to be confirmed, and consequently I answer this point as against the revision petitioner/plaintiff and in favour of the respondent/defendant.
28. In the result all the four civil revision petitions are dismissed with costs. The fair and decreetal order passed by the lower court on 6.7.1998 in I.A.Nos.4263 to 4266 of 1997 in O.S.No. 1701 of 1995 are confirmed Consequently the stay petition in C.M.P.No. 13153 of 1998 is also dismissed as unnecessary.