Madras High Court
G.Kesavan vs B.C.Raman on 16 August, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.08.2013 CORAM THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU C.R.P. (NPD) No.2846 of 2012 and M.P.No.1 of 2013 G.Kesavan .. Petitioner ..vs.. B.C.Raman ... Respondent Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the order in I.A.No.164 of 2007 in O.S.No.117 of 1996 dated 12.07.2007 on the file of the Pirncipal Subordinate Judge, Krishnagiri. For Petitioner : Mr.S.Ramesh for Mr.M.A.Gouthaman For Respondent : Mr.V.Bhiman O R D E R
The petitioner is the second plaintiff in a suit for specific performance. He is aggrieved against the order of the court below in dismissing his application filed under sections 148 and 151 C.P.C. seeking extension of time to deposit the sale consideration as per the decree passed in the said suit.
2.Short facts of the case are as follows:
The petitioner's father filed O.S.No.177 of 1996 on the file of the Sub Court, Krishnagiri against the respondent herein seeking for decree of specific performance based on an agreement of reconveyance. It is his contention that he sold the suit property to the respondent herein on 11.09.1990 for a sum of Rs.1,51,900/- and on the same day, both parties entered into an agreement of re-conveyance agreeing to re-convey the suit property to the plaintiff within a period of 10 years on receiving the same sale consideration. During the pendency of the suit, the petitioner's father/original plaintiff died and consequently, the petitioner herein was arrayed as the second plaintiff in I.A.No.142/2003 dated 07.03.2003. The defendant/respondent herein remained exparte and the trial court by judgment and decree dated 28.08.2003 decreed the suit thereby directing the defendant to execute the sale deed within a period of one month after receiving the sale consideration from the second plaintiff/petitioner herein. It was also decreed that in default by the defendant, the second plaintiff is to get the sale deed executed through the Court. Further, it was decreed that the defendant or his men agents should not interfere with the suit properties.
3.The petitioner herein did not pay the sale consideration to the defendant within the time stipulated and has chosen to file an application in I.A.No.164/2007 only on 04.03.2007, i.e., nearly after 4 = years, seeking for extension of time to deposit the said sale consideration. The said application was resisted by the respondent herein. After hearing both sides, the court below rejected the application by its order dated 12.07.2007. Aggrieved against the same, the present civil revision petition has been filed. In fact, this civil revision petition came to be filed with a delay of 817 days and however the same was condoned by my predecessor.
4.Heard the learned counsel appearing for the petitioner and the respondent.
5.It is submitted by the learned counsel for the petitioner that the respondent/defendant remained exparte in the said suit and therefore, he cannot oppose the application seeking for extension of time. The defendant also did not file any application under section 28 of the Specific Relief Act to rescind the contract. Thus, the decree has become final and consequently, the petitioner is entitled to seek for extension of time. The court below failed to note that the petitioner is not the original plaintiff and therefore, the extension of time for making deposit should have been granted. By taking note of the reason stated in the affidavit, even on equity, the petitioner is entitled to succeed.
6.Per contra, the learned counsel appearing for the respondent submitted that the petitioner herein was impleaded as the second plaintiff on 07.03.2003 itself and thereafter, the suit came to be decreed on 28.08.2003. Therefore, the petitioner is fully aware of the decree passed by the trial Court. Hence, the reasons assigned in the affidavit seeking for extension of time are false and the court below has rightly rejected the application. The petition filed after nearly 4 = years is barred by limitation and the court cannot extend the time beyond the time stipulated under the statute. In support of his contention, the learned counsel relied on the following decisions:
(i)2009(8) MLJ 417(SC), Bhupinder Kumar v. Angrej Singh;
(ii)2013(2)CTC 518, Vijay Ammal v. Ramalinga Naidu and another;
(iii)2009(3)MLJ1267,P.Rangasamy v. Avinashi Gounder and another;
7.The point for consideration in this civil revision petition is as to whether the application filed by the petitioner under section 148 read with Section 151 C.P.C. is maintainable and if so, whether the court below is justified in rejecting such application.
8.The suit for specific performance was instituted by the father of the petitioner on 21.02.1996. During the pendency of the suit, the original plaintiff viz. father of the petitioner died and in whose place, the petitioner was brought on record as the second plaintiff in I.A.No.142 of 2003 dated 07.03.2003. Thereafter, the suit was decreed on 28.08.2003. No doubt, the defendant/respondent herein remained exparte. Thus, it is clear that the petitioner who was brought on record on 07.03.2003, is fully aware of the decree passed by the trial court on 28.08.2003. Therefore, he cannot contend that he is not aware of the contents of the decree or that he was under the impression that his father might have deposited the sale consideration into the Court. The reason assigned by the petitioner in his affidavit before the court below is that he was under the bonafide impression that his father deposited the said sum into the court and only when he verified the said fact on 02.03.2007, he came to know that no such deposit was made. Thus, even according to the petitioner, he had chosen to verify the said fact only after nearly 4 years from the date of the decree and no reason whatsoever is assigned as to why he has not taken any steps for such a long time. Therefore, the reasons stated by the petitioner, apart from being not satisfactory or convincing, are to be held as false statement in view of the fact that he was made as a party plaintiff as early as on 07.03.2003 itself. It is not his case that he is not aware of the decree and on the other hand, it is his contention that he got impleaded as the second plaintiff in the suit and continued the same when the decree was passed on 28.03.2003. Therefore, the petitioner having not made any valid grounds for seeking extension of time, the court below has rightly rejected the said application.
9.Even otherwise, it has to be seen as to whether the application filed under section 148 and 151 C.P.C. is maintainable in view of the facts and circumstances of this case.
10.The suit was decreed on 28.08.2003 as follows:
VERNACULAR (TAMIL) PORTION DELETED
11.Clause (1) of the decree directs the defendant to execute the sale deed in favour of the second plaintiff within one month after receiving the sale consideration from him and also to hand over possession. Therefore, as per the clause (1) of the decree, the defendant should have executed the sale deed within one month and such execution is possible only if the second plaintiff paid the sale consideration to the defendant within such time. If the second plaintiff has paid the sale consideration within one month and inspite of such payment, if the defendant failed to execute the sale deed, then under clause (2) of the decree, the second plaintiff is entitled to get the sale deed executed through court. Thus, the crux of the matter is that the second plaintiff/petitioner has to perform his obligation first by paying the sale consideration within one month as stipulated therein. Admittedly, no such payment was made or any such attempt was even claimed to have been made by the second plaintiff/petitioner. On the other hand, it is his case that he was under the impression that his father would have deposited into the court during the life time. The father of the petitioner died before the decree. Hence no such occasion would have arisen for the father to pay or deposit during the trial. Hence, this contention is to held as false. When that being the position, whether an application filed after 4 = years under section 151 C.P.C. is maintainable, is the question to be considered in this case.
12.For proper appreciation of the issue, section 148 of C.P.C. is extracted hereunder:
"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."
13.Thus, from the perusal of the above said provision of law, it is crystal clear that the court may, in its discretion, enlarge any period fixed or granted by the court for doing of any act prescribed or allowed, even though the period originally fixed or granted may have expired. But, such enlargement, from time to time, can be made not exceeding 30 days in total. Going by the above said provision, it has to be seen as to whether the Court is empowered to extend such period for doing of any act, if in the meantime, the very action itself is barred by limitation by virtue of the Limitation Act, 1963. No doubt, the extension contemplated under 148 C.P.C. is in respect of a decree or order passed by the Court for doing of any act prescribed or allowed by C.P.C. But, at the same time, if the party fails to perform such action within the time stipulated by the Court and allows such performance also to be barred by limitation in the meantime, in my considered view, the Court cannot enlarge the time beyond the period of limitation under section 148 C.P.C. Needless to say that power to extend time under section 148 cannot be construed to mean that such power is conferred notwithstanding anything contained under the Limitation Act.
14.Here in this case, the trial court passed the decree on 28.08.2003. As per the decree, the parties have to perform their obligation. If such obligation is not performed within the time stipulated in the decree and if they seek extension of time, then such extension could be considered only when such performance sought to be made is not barred by limitation in the meantime. When the decree has been passed on 28.08.2003 by granting one month time for the parties to perform their mutual obligation, admittedly, the petitioner has not paid the amount within one month. However, for performing such action, he is seeking extension of time after nearly 4 = years. At this juncture, it is useful to refer Article 54 of the Limitation Act which grants only three years period as limitation for specific performance of a contract. Therefore, when the parties more particularly, the petitioner herein has allowed the mutual performance to be barred by limitation, in my considered view, section 148 C.P.C. cannot be pressed into service and consequently, the Court is not empowered to enlarge the time also.
15.The learned counsel for the petitioner further submitted that as the defendant has not filed any application under section 28 of the Specific Relief Act to rescind the contract, the Court is empowered to extend the time. I am unable to appreciate the said submission. As already pointed out by me supra, it is the first obligation on the part of the petitioner to pay the sale consideration within one month as per the decree. When he fails to perform such obligation, he cannot complaint that the defendant has not filed application under section 28 of the Specific Relief Act. Merely because the defendant has not filed application that does not mean that the decree becomes executable even in the absence of his part of performance by the petitioner. Equally passing of the exparte decree also cannot be put against the defendant when executability of such decree itself is questioned by him.
16. In fact, I have considered the scope of section 28 of the Specific Relief Act in my recent decision reported in 2013(2) CTC 518, Vijay Ammal v. Ramalinga Naidu and Another, wherein at paragraph No.14, I held as follows:
"From the perusal of Section 28, it could be seen that the same was intended to give an option to the vendor or lessor to apply before the Court to have the contract rescinded if the decree holder/purchaser /lessee does not pay the purchase money or other sum which the Court has ordered him to pay within the period allowed by the decree or such further period as the court may allow. Sub-rule(3) further shows that the purchaser or lessee is also entitled to move for an order for such other further relief including the execution of proper conveyance or lease by the vendor or lessor, the delivery of possession or partition, etc., of the property, if the decree holder/purchaser/lessee pays the purchase money or other sum, which he is ordered to pay under the decree within the period referred to sub-section(1)."
17.Thus, it is clear that section 28 can be invoked by both parties under the circumstances as stipulated therein. But at the same time, it is not an automatic entitlement for the purchaser to seek extension of time under section 148 C.P.C. In my considered view, the purchaser has to independently satisfy the Court when he seeks extension of time under section 148 of C.P.C. Mere non filing of an application for rescission of contract under section 28 of the Specific Relief Act by the other side itself cannot be taken as a ground for seeking extension of time under section 148 C.P.C. Such application for rescission of contract can be filed by the defendant at any time before the expiry of period of limitation for performing such obligation or he can just leave it as it is once such performance is barred by limitation.
18.The learned counsel for the respondent relied on 2009(8) MLJ 417, Bhupinder Kumar v. Angrej Singh, wherein the Apex Court has held that the suit for specific performance is in the nature of discretionary remedy and on equity and the appellant therein was not entitled to get the decree executed since he failed to place relevant materials about his inability to tender or deposit the decreed amount. It is further observed therein that though the court has power and discretion to extend the time for fulfillment of the contract, there was neither any material to show that the appellant therein was having the required money nor had he tendered or deposited the same as per the terms of the decree.
19.In another decision relied on by the learned counsel for the respondent , 2009(3)MLJ 1267, P.Rangasamy v. Avinashi Gounder and another, a learned single Judge of this Court has observed as follows:
"Under Section 28 of the Specific Relief Act, the trial Court has got ample power to extend time for depositing the balance of sale consideration as per the terms of the decree in O.S.No.242 of 1996. There cannot be two opinion with regard to the settled proposition of law that time can be extended under sections 148 and 151 of C.P.C. for depositing the balance of sale consideration in a specific performance suit. But, the important point to be considered in this case is, whether such an extension of time under Sections 148 & 151 of C.P.C. can be given by the Court when the Limitation Act comes in the way prescribing three years time for depositing the balance of sale consideration under Article 54 of the Limitation Act. Article 54 of the Limitation Act runs as follows:
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Description of suit Period of limitation Time from which period beings to run
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For specific Three years The date fixed by performance of the performance, or, if a contract no such date is fixed, when the plaintiff has notice that performance is refused.
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In the case on hand, the suit O.S.No.242 of 1996 was decreed on 29.04.1997, giving time for the plaintiff to deposit the balance of sale consideration within one month, i.e., on or before 28.5.1997. So, as per Article 54 of the Limitation Act, 1963, the plaintiff has to execute the decree in O.S.No.242 of 1996 on or before 28.5.2000. But unfortunately, in this case, I.A.No.1837 of 2001 was filed only on 10.08.2000 i.e., nearly three months after the expiry of the date fixed by under Article 54 of the Limitation Act, 1963. Under such circumstance, I am of the view that the Court cannot extend time under sections 148 and 151 of C.P.C. when the time granted under the Limitation Act has already been expired. Once the suit is barred under the Limitation Act, the Court thereafter cannot extend the time either under Section 148 or under Section 151 of C.P.C. or under Section 28 of the Specific Relief Act."
20.Therefore, considering all these facts and circumstances,I am of the view that the petitioner is not entitled to get the relief under section 148 of C.P.C. before the court below and consequently, the order rejecting such application, does not warrant any interference in this civil revision petition. Accordingly, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.
vri To The Pirncipal Subordinate Judge Krishnagiri