BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 16.04.2010
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
CRP(NPD).No.1289 of 2009
and
M.P.No.1 of 2010
Ponnuswamy .. Petitioner
Vs.
1.Anguswamy
2.Govindarajan
3.Arunachalam
4.Rengrajjan .. Respondents
Prayer:- This Revision petition is filed under Section 115 of C.P.C. against the order, dated 25.09.2006 in I.A.No.602 of 2005 in O.S.No.1974 of 2004, on the file of the I Additional District Munsif Court, Coimbatore.
For Petitioner : Mr.C.Deivasigamani
For Respondents : Ms.Saritha for Mr.T.R.Rajaraman
O R D E R
The Civil Revision Petitioner herein is the applicant in I.A.No.508 of 2006 and also the applicant in I.A.No.602 of 2005 and the plaintiff in the suit in O.S.No.1974 of 2004, on the file of the I Additional District Munsif Court, Coimbatore. The revision petitioner has filed an Interlocutory Application in I.A.No.508 of 2006 praying to extend the time granted to pay the cost to the respondent in I.A.No.602 of 2005 passed on 13.12.2005 under Section 158 r/w Section 151 of Civil Procedure Code.
2.The short facts of the case are as follows:
The revision petitioner and three others have filed the suit in O.S.No.1974 of 2004 against the respondents/defendants stating that the plaintiffs have inherited the property from their father and that they have been enjoying the said property, continuously, from the year 1952. The respondents/defendants 1 to 3 are trying to alienate the property to the fourth respondent/fourth defendant. Further, the defendants have attempted to interfere with the revision petitioners/plaintiffs possession of the suit property. The said case was posted on 11.04.2005 and subsequently on various other dates, for hearing. On 13.09.2004, the above suit was dismissed for default.
3.Aggreived by the said dismissal order passed by the learned I Additional District Munsif Court, Coimbatore, the revision petitioner/plaintiff has filed the restoration petition along with the condonation delay petition to restore the suit on the file of the I Additional District Munsif Court, Coimbatore in I.A.No.602 of 2005 and to condone the delay of 147 days in filing the restoration petition in O.S.No.1970 of 2004. The same was allowed on 13.12.2005 on condition that the revision petitioner/plaintiff should pay a cost of Rs.1,000/- to the respondents on or before 04.01.2006, failing which the petition would stand dismissed. The case came for hearing once again on 04.01.2006. On that day, the revision petitioner/plaintiff did not comply with the conditional order and hence the learned District Munsif Judge dismissed the condone delay petition in I.A.No.602 of 2005, dated 04.01.2006. Aggrieved by the said decree and decreetal order, the revision petitioner/plaintiff filed an Interlocutory Application in I.A.No.508 of 2006 to extend the time granted to pay the cost of Rs.1,000/- to the respondents in I.A.No.602 of 2005 in O.S.No.1974 of 2004, dated 13.12.2005. Supporting to this petition, the revision petitioner filed an affidavit stating that he had not been well and that he had been advised to take complete rest for the period from 08.12.2005 to 08.01.2005 for his back pain. Under the circumstances, he was unable to comply with the conditional order and he has prayed for extension of time to comply with the conditional order passed in I.A.No.602 of 2005, dated 13.12.2005.
4.The respondents/defendants have filed a counter statement stating that the suit was dismissed on 13.09.2004, but the revision petitioner had filed the restoration petition along with condonation of delay petition under Section 5 of Limitation Act. This petition was allowed on condition that the revision petitioner should pay cost of Rs.1,000/- to the respondents/defendants on or before 04.01.2006. On that day, neither the petitioner nor his counsel appeared and hence the petition was passed over, to be taken up in the evening session. But, in spite of this opportunity, the petitioner did not turn up to attend the Court. Hence, the petition was dismissed. The respondents further stated in their counter statement that the petitioner had not proved his illness by keeping supporting documents. Hence, the respondents have prayed to dismiss the petition.
5.After considering the contentions of the revision petitioners and counter statement of the respondents/defendants, the learned Additional District Court, Coimbatore dismissed the petition seeking extension of time to comply with its conditional order, stating that the petitioner did not bring on any evidence that he was really not keeping well for the period extending from 06.12.2005 to 08.01.2006 and that no adequate medical evidence was furnished.
6.Aggreived by the said order and decreetal order passed by the learned I Additional District Munsif Judge, Coimbatore in I.A.No.508 of 2006, dated 25.09.2006, the revision petitioner/plaintiff has filed the above revision petition.
7.The learned counsel appearing for the revision petitioner argued that the case has been transferred from the Sub-ordinate Judge of Coimbatore to the District Munsif Court, Coimbatore on the ground of pecuniary jurisdiction. The learned counsel further pointed out the petitioner is aged about 69 years and has been afflicted with many ailments and as such he had been unable to comply with the conditional order. The learned counsel, further pointed out that the suit is a triable one as several issues have to be decided to ascertain the facts of the case. Hence, the learned counsel has prayed for one lost opportunity to comply with the conditional order. In support of his arguments, the learned counsel has cited the following Judgments made in:
AIR 1962, Supreme Court 882, Mahanth Ram Das v. Ganga Das, the relevant head notes of which are as follows:
“Civil P.C. (1908), Ss. 148, 149 and 151 peremptory order for payment of deficit court-fee within time fixed Court can extend time under Ss.148, 149 and 151 AIR 1956 Pat. 20, Reversed.”
AIR 1973, Madras 250 (V 60 C 71), Periasami v. Iluppur Panchayat Board, the relevant head notes of which are as follows:
“Index Note:- (A) Civil P. C., Section 148 Enlargement of time Restoration of suit on payment of costs within specified time Extension of time for costs after the expiry of period When can be validly granted.”
AIR 1976 Bombay 241, Shankar v. Parwatibai, the relevant head notes of which are as follows:
“(C) Civil P.C. (1908), Sections 148, 149, 151 Expiry of time fixed for payment of costs Application for extension of time made after expiry of time granted or fixed is not incompetent. (1975) 77 Bom LR 511 and AIR 1961 SC 882 Rel. on.”
AIR 1983 Supreme Court 57 Jogdhayan v. Babu Ram, the relevant head notes of which are as follows:
“(A) Civil P. C. (5 of 1908), Ss. 100, 148 and O. 41, R. 1 (2) (as amended by Punjab, Haryana and Chandigarh) Second appeal Copy of order impugned not filed Time granted Copy filed along with application for condonation of delay Dismissal of appeal, held, was not warranted Power under Section 148 should have been exercised Applicability of O.41, R.1(2) (as amended by Punjab, Haryana). Second Appeal No.1941 of 1966 (Punj), Reversed.”
AIR 1983 Supreme Court 428, Periyakkal v. Dakshyani, the relevant head notes of which are as follows:
“Civil P. C. (5 of 1098), S. 148 Enlargement of time Time fixed by consent decree Court has power to extend time. Ex. S. A. No. 89 of 1974, D/- 15-1-1979 (Kant.) Reversed.”
AIR 1984 Supreme Court 1896, Prem Narain v. M/s. Vishnu Exchange Charitable Trust, the relevant head notes of which are as follows:
“(A) Civil P. C. (5 of 1908) S. 148 Direction to deposit deficit court-fees Request for extension of time to deposit Rejection Held, to be incorrect on facts.
(B) Civil P.C. (5 of 1908) S. 35 Request of appellant for extension of time to deposit deficit court-fees Respondent, who contested such reasonable request, held, should be made liable to pay costs.”
AIR 1988 Madras 241, Muniammal v. Sakkubai, the relevant head notes of which are as follows:
“Civil P.C. (1908), Ss. 148, 151 Costs Payment of Extension of time for Conditional Order by Court allowing petition on payment of costs with direction that otherwise the petition will stand dismissed’ Costs not deposited on specified date or even on subsequent dates on which case was adjourned Case not dismissed by Court but kept pending Held, that Court had not become functus officio It could grant extension of time for payment of costs. AIR 1977 Madh Pra 1 (FB) and AIR 1972 All 246 (FB) Rel. on.”
(1996) 11 Supreme Court Cases 228, Yeshoda and Another Vs. K.Nagarajan the relevant head notes of which are as follows:
“Specific Relief Act, 1963 S. 28 Decree for specific performance passed with condition of payment of a further amount by respondent Application filed under S. 28 to rescind the decree on ground of default in compliance with the condition Application filed by respondent for extension of time for payment of the amount Application for rescission of the decree dismissed and that for extension of time allowed by High Court Amount deposited within the extended period Contention that court had no power to enlarge time and that petitioner had right to seek rescission of the decree, held, has no substance Court had power under S. 148 CPC to enlarge the time and under the circumstances court correctly exercised its discretion Civil Procedure Code, 1908, S. 148.”
Section 148 of Enlargement of Time 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.”
AIR 1999 Rajasthan 185, Mohammed Yousuf v. Bharat Singh, the relevant head notes of which are as follows:
“Civil P.C. (5 of 1908), S. 148; O.6, R. 18 Extension of time Failure to amend plaint within time granted by trial Court Mistake committed by plaintiff not of serious nature Order extending time by Court itself to file amended plaint is proper Plaint cannot be rejected.”
(1989) 4 Supreme Court Cases 403, Johri Singh v. Sukh Pal Singh, the relevant head notes of which are as follows:
“Civil Procedure Code, 1908 Section 148 and Order 20, Rul3 14(1) Decree in pre-emption suit Power of court under Section 148 to enlarge the period fixed under Rule 14(1)(a) for payment of purchase money Held, in case of default in payment of a small fraction of the purchase money due to bona fide inadvertent arithmetical error, whether or not caused by action of court, court has jurisdiction under Section 148 to enlarge the time for payment of the balance amount having regard to facts and circumstances of the case Maxim ‘actuscuriae neminem gravabit’ Applicability.
Civil Procedure Code, 1908 Sections 115 and 148 Limits of High Court’s revision jurisdiction under Section 115 When subordinate court makes an order in proper exercise of its jurisdiction under Section 148 and neither acts illegally nor commits any material error in procedure which may affect the ultimate decision, High Court’s interference under Section 115 not called for.
Civil Procedure Code, 1908 Order 20, Rule 14(1) Non-deposit of declared amount Provision being mandatory will strictly apply except where stay granted by appellate court In latter case nature and effect of stay and fixation of fresh period to be examined.”
AIR 1985 Supreme Court 964, Ganesh Prasad v. Lakshmi Narayan, the relevant head notes of which are as follows:
“(B) Civil P.C. (5 of 1908), O. 9 R. 13 Suit for eviction Direction to deposit rent under S. 11A of Bihar buildings (Lease, Rent and Eviction) Control Act (1947) suit decreed ex parte Decree set aside under O. 9 R. 13 Effect Earlier direction for making deposit is revived. (Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947), S. 11A.”
AIR 1958 Kerala 88 (V 45 C 35), Kathyee Cotton Mills v. R.P.Pillai, the relevant head notes and operative portion of which are as follows:
“(c) Civil P.C. (1908), Ss. 148, 149 and O. 7 R. 11 (c), Proviso (added by Travancore-Cochin High Court) Period fixed or granted by Court Time granted under S. 149 read with O. 7 R. 11 (c).
The time granted by the Court, under S.149, read with O. 7, R. 11 (c), is a period fixed or granted by the Court, within the meaning of S. 148 and the Court has got power to enlarge or extend the time originally fixed or granted by it. The Proviso to O. 7, R. 11 does not stand in the way of the exercise of that power. Ss. 148 and 149 give an absolute power and discretion to the Court to grant time and later extend the same to such period as it may think fit. The proviso is more in the nature of a guidance or a direction as to the period to which the court can exercise its discretion. It is not in any way mandatory in the sense that any act done in contravention of the same will be a void or an illegal act. The object of the proviso appears to have been only to put a check on the exercise of undue indulgence in favour of even undeserving parties. That it is not mandatory is to be seen from the fact that no penalty is attached in the same proviso.”
8.The learned counsel appearing for the respondents vehemently argued that the revision petitioners have sought remedy against the respondent and as such they should have co-operated with the Court for speedy disposal of the case. Further, the learned counsel pointed out that the petitioners and their counsel are well aware of the conditional order imposed on the petitioners on 13.12.2005, wherein it was stated that the petitioners on 13.12.2005, wherein it was stated that the petitioners should pay the cost of a sum of Rs.1,000/- on or before 04.01.2006. On that day, the matter was taken up in the morning and it was passed over due to non-appearance of the petitioners and their counsel. Again the matter was taken up in the evening session, but in spite of this the petitioners and their counsel did not turn up and hence the petition was dismissed. Sufficient opportunities were given to the revision petitioner to comply with the conditional order, but he had failed to comply with the conditional order. As such, the learned counsel has prayed to dismiss the case.
9.Considering the facts and circumstances of the case, perusal of findings of the learned I Additional District Munsif Judge, Coimbatore and arguments advanced by the learned counsel appearing on either side, this Court is of the view that the suit is a title suit and that the same has to be decided after framing necessary issues and after recording oral and documentary evidence to render proper justice to the parties concerned. Further, no interim order was in force against the respondents/defendants, restraining them from alienating the property. Hence, this Court allows the civil revision petition on the following conditions:
1.The revision petitioner shall pay a sum of Rs.500/- to the Women Lawyers Association of High Court, within a period of 15 days from the date of receipt of this Order.
2.The revision petitioner should comply with the conditional order imposed in I.A.No.602 of 2005, dated 13.12.2005 and pay the cost of Rs.1,000/- to the respondents/defendants, on or before 30.06.2010,
10.In the result, the above Civil Revision Petition is allowed on the above terms. Consequently, the order and decreetal order passed in I.A.No.508 of 2006, dated 25.09.2006 is set aside and the suit in O.S.No.1974 of 2004 is restored on the file of the I Additional District Munsif Court, Coimbatore. Connected miscellaneous petition is closed. There shall be no order as to costs.
krk
To:
1. The I Additional District Munsif Court,
Coimbatore