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Selva Vinayagar Temple vs Karur Municipality on 29 August, 1994

Madras High Court
Selva Vinayagar Temple vs Karur Municipality on 29 August, 1994
Equivalent citations: AIR 1995 Mad 170
Bench: N Arumugham


ORDER

1. Heard both. This revision is filed to challenge the impugned order passed by the learned Principal District Munsif, Karur in I.A. No. 641 of 1993 in O.S. No. 1981 of 1991 dated 3-9-1993 allowing the said application to extend the time to pay the cost of Rs. 400/- by the respondent-Karur Munci-pality represented by its Commissioner till 2-9-1993 under Section 148 of the Code of Civil Procedure.

2. The brief facts, which led to this revision are stated as hereunder:– The revision petitioner herein was the plaintiff before the trial court, who filed the suit against Karur Municipality, the respondent herein for the relief of mandatory injunction to restore the electricity service connection to a temple by name Selva Vinayagar temple Chinnandan Koil Village represented by its hereditary trustee. Since the electricity service connection provided to the same has already been washed away by the flood came to in the adjance river, this suit was necessitated on their declining to give power for the reasons own to themsleves. Since no appearance was made, the Municipality was set ex parte and the suit was decreed as prayed for. However, an pplication was filed to set aside the ex parte decree in I.A. 228/93, which after hearing both sides, was allowed on 10-8-1941 This petition was filed along with the written statement on behalf of the respondent defendant herein. However the trial Court was pleased to allow this petition on payment of the cost of a sum of Rs. 400. – on or before 24-8-1993 and that if the said condition has been complied, this petition I.A. 228/93,
would have been allowed and on his failure to do so, the petition will stand automatically dismissed.

3. In pursuant to the said order passed by the trial court, the cost of a sum of Rs. 400/- has to be paid on or before 24-8-1993. But that amount has not been paid. Therefore, the respondent Municipality has filed an application I.A. 641/1993 which was allowed by the learned District Munsif on 3-9-1993. This application was filed under Section 148 of the Civil Procedure Code. The reasoning given by the respondent in his own affidavit is that since the case bundle has been misplaced with some other papers, the relevant direction has not been taken note of, and that, therefore, the conditional order could not be complied with. Therefore, this petition was filed after the time granted has been expired. Aggrieved at this order, and challenging the same, the present revision has been filed.

4. The learned counsel appearing for the respondent relied on Section 145 of the Civil Procedure Code and particularly dwells her case on the concept of the discretionary power, vested with the court to extend the time. There was no controversy or denial of the said proposition of law by the Bar on behalf of the other side. A casual reading of Section 148 of the Civil Procedure Code would clinch the fact that extending the time of the parties to a litigation by the Court of law is purely a discretionary one and it can be granted, provided if the Court is satisfied the reasonings given for granting the extension of time given already for the compliance of the order. Two case laws reported in “Muni-sammal v. Sakkubai and another” AIR 1988 Mad 241 and another reported in N. R. Nainar Mohammed v. Khaja Mohideen AIR 1991 Mad 29 were relied upon on behalf of the respondent. In the context of no controversy of the above legal position, I do not propose to traverse the said ruling and ihe legal issues enunciated therein. However, it has to be seen that the ground for granting extension of time is to be identified by a Court of law is the sine que non to exercise its discretionary power vested under Section 148 of the Code of Civil Procedure. It does not mean that after
the expiry of the time granted already by the Court, Section 140, C.P.C. will, give an automatic right to the aggrieved party to get the extension of time of that is not the tenor of the provision of law adopted by the statute. The Court must get fully satisfied with the grounds and then only a wider discretion vested with the court is to be exercised in granting the extension of time. Of course it is unlimited and one cannot deny the discretionary power vested with the court. If this is the legal position, then it is to be seen, that what the Court has to apply its mind in identifying the genuine grounds so as to enable it to exercise its discretionary power. If no grounds arc identified, then there would not be any meaning to exercise its discretionary power without the proper and legal grounds. I would make it clear that if no adequate and satisfactory grounds are placed before the Court, then the Court may decline
to exercise its discretionary power.

5. If the above basic legal concept is to be applied to the facts of the instant case, the grounds identified by the learned District Munsif is because no counter has been filed, he has to pass the impunged order, which practice is totally salient to the clear settled position of law and non-practicable from this reality also. The non filing of the counter or objection does not clothe any power to the Court to allow the petition even so the trial Court has not set the respondent-revision petitioner ex parte. The very disturbing feature available to this case is that on filing the above petition I.A. 641 of 1993, it is seen that no notice has been “ordered to the revision petitioner and called for their objection if any, to be filed. Without ordering the notice of the said petition, the learned District Munsif has
no right or power to extend the time and in this regard, the Impunged order is clearly under the teeth of the doctrine of audi alteram partem and the principle of natural justice. Therefore, for the said reasons above-mentioned, I have no hesitation to set aside the impunged order as it cannot be sustained in any Court of law. Accordingly, the impugned order dated 3-9-1993 is hereby set aside.

6. However, in the context of the nature and character of the relief asked for, the
adjudication of the case in hand necessitates full hearing of both parties, for the reason that whatever the order, if any, the respondent-Municipality has to comply with the same and provide the energy to the suit temple by providing proper enemities. But since the condition impored already has not been complied with. While I am setting aside the impugned order, the ends of justice would require that this matter may he remitted back to the Court below again for fresh consideration and if the Court is satisfied with the reasons, it can proceed further in accordance with law after having given full opportunity to both sides. In view of the above findings, while the impunged order is being set aside, the whole matter is remitted back In the learned District Munsif again for fresh, consideration and disposal of the same in accordance with law within a period of four weeks from the date of receipt of a copy of this order. The revision is allowed accordingly and there will be no order as to costs under the circumstances of the case.

7. Revision allowed.

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