Allahabad High Court
Shiv Ram Das Chela And Others vs Subhash Chandra And Others on 2 April, 1999
Equivalent citations: 1999(2)AWC1552
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. Heard Sri D.P. Singh, learned counsel for the petitioners and Sri U. K. Saxena, learned counsel for Respondent No. 1.
2. Suit No. 246 of 1992 for specific performance of the contract was filed by respondent No. 1 against the petitioners. That suit was decreed ex parte. The petitioners moved an application under Order IX. Rule 13, C.P.C. After hearing learned counsel for the parties, the trial court passed an order setting aside the ex parte decree in the following terms :
"Order dated 24.12.1992 passed in Original Suit No. 246 of 1992 is set aside on payment of Rs. 50 as costs. After payment of cost, Original Suit No. 246 of 1992 be restored to its original number."
Sd./ Illegible 1.1.1994"
3. The petitioners did not comply with the order by payment of costs. The application contained in Annexure-4 was moved by respondent No. 1 for recalling the order, dated 1.1.1994 on ground that the costs have not been paid, The Court thereafter passed the following order dated 28.2.1994 :
"Cost not paid within 14 days of the order nor till today on such order dated 1.1.1994 being conditional order it is recalled and O. S. No. 246 of 1992 stands decreed on 24.12.1992. Sd./Illegible 28.2.1994"
The petitioners filed civil revision against the said order which was dismissed by the revisional court on merit even though none had appeared to press the petition.
4. By the present writ petition, the petitioners have prayed for quashing the order, dated 21.11.1994 passed by the District Judge, Jalaun at Oral in Civil Revision No. 35 of 1994 and order dated 28.2.1994 passed by the Civil Judge. Jalaun at Oral in Civil Misc. Case No. 21 of 1993.
5. It is submitted by the learned counsel for the petitioners that while allowing the restoration application under Order IX, Rule 13 of the C.P.C., the Court had not fixed any time for depositing the costs and under no law or Rules, time-limit of 14 days for depositing the costs as observed by the Courts below has been provided. It is also submitted that the order dated 28.2.1994 was passed without serving notice upon the petitioners and the revisional court committed error in not considering this aspect. It is also submitted that the Courts should normally try to dispose of the matter giving reasonable opportunity to the parties to contest the matter and the decision should not go by default. Learned counsel for the respondent No. 1, however, submits that even though there was no rule providing 14 days' time for payment of the amount of cost in case no time is fixed by the order, yet the costs should have been deposited within a reasonable time. It is further submitted that the petitioners never offered to pay the costs and just they wanted to linger on the disposal of the suit. It is further submitted that the Courts below had directed issuance of the notice to the petitioners on receipt of application for setting aside the order dated 1.1.1994 and the Court did pass order for serving notice which was initially served upon junior counsel of the petitioners. It is lastly submitted that since the order was not complied with within a reasonable time the Court had no option but to recall the same and the Court had no power to extend the time as it has become functus officio.
6. There is no dispute that while passing order dated 1.1.1994, the Court did not fix time within which the costs were to be paid. The Court should ordinarily pass orders limiting time within which the cost is to be paid. Learned counsel for the opposite party No. 1 has drawn attention of this Court to the provisions of Order IX. Rule 13. C.P.C, and it appears from the reading of the said provision that the Court may pass an order directing depositing of the costs at the time of passing of the order itself or within a time to be fixed by the Court. However, in cases where no time is fixed by the Court, the parties against whom the costs are levied are not entitled to claim that the cost can be paid at any lime. In case there is no time mentioned by the Court for payment of costs, then costs should be paid within a reasonable time. What should be the reasonable time, does not appear to have been given in any Rule nor the learned counsel has been able to point out any decision in which reasonable time within which the costs are to be deposited has been explained. Considering that the limitation for moving of the application for setting aside the ex parte judgment and order is 30 days from the date of the order or from the date of knowledge in the opinion of the Court, the reasonable period within which the costs should be deposited should not exceed 30 days in case the Court had not fixed any time limit for compliance of the order.
7. As a fact it is found that the petitioners never offered to pay the costs. In the memo of revision filed before the District Judge, there is ground that the petitioners ever offered to pay costs or that they were ready to pay costs. Only ground which was taken was that the order dated 28.2,1994 was passed without serving notice upon the petitioners. The allegations that the service was made upon some imposter and not upon the junior counsel for the petitioners, are not supported by affidavit of the Junior counsel, therefore, cannot be accepted. Even though in the order dated 28.2.1994, the Court had not observed that notice was served upon the petitioners, yet from the material placed before this Court it is found that the contention of the petitioners that no notice was served upon them is not correct. Service on the counsel is as good as service upon the party to the litigation.
8. Learned counsel for respondent No. 1 has placed reliance upon a Hon'ble Judge's decision of this Court in Nanak Chand v. Gosuiami Preetam Lal. AIR 1972 All 166, in which it was held that the Court can pass a conditional order on an application under Order IX, Rule 13 of the C.P.C. for setting aside ex parte order and where such order is passed and condition is not fulfilled within time specified therein, the application automatically stands dismissed. The Court had followed the decisions of this Court in Ahmad Hussain V. Har Dayal. AIR 1926 Ali 142 and Gaya Din v. Lalia Prasad, AIR 1936 All 477. That was a case in which alongwith imposing the cost, the Court had also imposed condition of deposit of Rs. 394.15 paise as rent. A date for compliance of this condition was fixed and the Court had specifically ordered that failing compliance of such condition the application shall stand automatically rejected. In the instant case, as has been found above, the Court had not passed a clear order as to the impact of the n on-compliance of the order.
9. So far as the submission of the learned counsel for respondent No. 1 that after expiry of the period, the Court becomes functus officio and cannot extend the period originally fixed is concerned, this Court by a full Bench decision in Gobardhan Singh v. Barsati, AIR 1972 All 246, held that the Court had jurisdiction, if sufficient case is made out, to extend the time even when the application for extension of time is made after expiry of the time fixed. It is not the application for grant of further time, whether made before or after expiry of the time granted which confers jurisdiction on the Court. The Court possesses the jurisdiction under Section 148 of the Civil- Procedure Code to enlarge the time and the application merely invokes that jurisdiction.
10. It is true that the petitioners never offered to pay the costs and the question of extension of time never arose before the Courts below but there has been constant view of the Apex Court as well as of this Court that normally the disputes between the parties should be decided after contest and should not be decided by default. In view of the fact that this Court under Section 148 of the C.P.C, has jurisdiction to extend the time and in the interest of justice, it is felt that one more opportunity be afforded to the petitioners to contest the suit, this Court feels that the time for payment of costs be extended by 3 weeks from today and for laches on the part of the petitioners, the respondent No. 1 be compensated by payment of Rs. 2,000 as costs within the said period.
11. In view of the aforesaid discussions, the petition is allowed and the order of the trial court as well as of the revisional court dated 21.11.1994 and 28.2.1994 are quashed subject to the condition that the petitioners shall pay Rs. 2,000 as costs of 'his petition to the respondent No. 1 by depositing in the trial court within 3 weeks from today and further comply with the order dated 1.1.1994 passed by the High Court within the said period of 3 weeks from today failing which the writ petition shall stand dismissed without further orders of this Court. " On compliance of this order, the impugned order shall stand quashed and the suit shall stand restored to its original number. The trial court shall decide the suit within a period of one year from the date the suit is restored.