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1971 DIGILAW 198 (MP)

NANDLAL DHOOT v. PARASRAM DHOOT

1971-12-22

R.K.TANKHA

body1971
JUDGMENT : ( 1. ) THIS appeal has been filed by the plaintiff against the orders dated 26-6-1970 and 28-7-1970 passed by the Additional District Judge, Hoshangabad, in civil suit No. 3-A of 1964. ( 2. ) THE facts of the case, in brief, are that the plaintiff, who is insane, filed the present suit through his next friend and guardian Smt. Krishnabai, his wife, for possession of the suit house against the defendant. The suit was dismissed in default for non-appearance of the plaintiff on 3-7-1967. In the application under Order IX, rule 9, Code of Civil Procedure for restoration of the suit it was mentioned that since the condition of the plaintiff had deteriorated and it was suspected that he was suffering from cancer and as such he was taken to Maharashtra State for treatment and Smt. Krishnabai also fell sick as a result of that, she could not attend the hearing. The trial court, on 26-6-1970, ordered the suit to be restored to file on condition that if the plaintiff paid Rs. 175/-as costs to the defendant before the next date, which was fixed as 25-7-1970, the suit shall be restored but, if he failed to pay the full amount by the said date, the suit, shall stand dismissed. In the order sheet dated 25-7-1970, the Court mentioned that the cost had not been deposited so far ; but to await final report in the matter, the next date of hearing was fixed as 28-7-1970. On that date, the amount or cost was deposited but no application for extension of the period or for condonation of delay in late depositing of the cost was made by the plaintiff. The trial court held that since the plaintiff had failed to deposit the amount of cost within the period allowed, the restoration application stood dismissed. The plaintiff has, therefore, filed the present appeal under Order XLIII, rule 1 (c)of the Code of Civil Procedure. ( 3. ) THE learned counsel for the appellant contended that the trial Court failed to exercise its jurisdiction properly in not condoning the delay in the special circumstances of the case when the plaintiff was insane and the suit was by the next friend and guardian. ( 3. ) THE learned counsel for the appellant contended that the trial Court failed to exercise its jurisdiction properly in not condoning the delay in the special circumstances of the case when the plaintiff was insane and the suit was by the next friend and guardian. It ought to have cordoned the delay by exercising its powers under section 151 of the Code of Civil Procedure, more so when it was of only two days and the cost was also deposited before the passing of the order on 28-7-1970. The learned counsel for the defendant, on the other hand, contended that since the plaintiff had failed to deposit the cost by 25-7-1970 as per the order sheet dated 26-6-1970, the application for restoration of the suit stood dismissed and thereafter, even if the cost was deposited on 28-7-1970, the trial Court had no jurisdiction to condone the delay. As such the order passed by the trial Court on 28-7-1970 was correct and requires no interference. ( 4. ) THE first point that has to be considered is whether the matter would be governed by the provisions of section 148 or section 151 of the Code of Civil procedure. The two sections read as under : "s. 148.-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, even though the period originally fixed or granted may have expired. S. 151.-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. " ( 5. ) IN the present case section 148 of the Code has no application because it would apply where time is granted or fixed for the doing of any act prescribed or allowed by the Code. In other words, whenever a Court fixes any period for the doing of any act in a suit or proceeding, the act in respect of which the time is fixed must be one prescribed or allowed by the Code. The instances of such acts are in the provisions of Order VI, rule 18, and order VII, rule 11 (b) and (c) of the Code. The instances of such acts are in the provisions of Order VI, rule 18, and order VII, rule 11 (b) and (c) of the Code. The time which was granted by the trial Court for payment of cost while restoring the suit as a condition precedent thereto was not an act prescribed or allowed by the Code. Therefore, the provisions of section 148 of the Code have no application to the facts of the present case. ( 6. ) IT then remains to be considered whether, on the facts and in the circumstances of the case, the trial Court ought to have exercised its inherent powers under section 151 of the Code of Civil Procedure for condoning the delay in depositing of the cost as ordered by the Court. The order of the trial Court, dated 26-6-1970, is in the following terms : ( 7. ) SINCE the cost, as ordered by the Court, was not deposited by 25-7-1970, the operation of the order being automatic, viz. , that the application for restoration shall stand dismissed, became effective. The trial Court would thus have no jurisdiction to extend the time allowed after the peremptory order became operative. I am supported in this view by the decisions of Bose J. (as he then was) in Sheobaransingh v. Moolchand. (1946 NLJ Note 139-M. A. No. 8 of 1944, decided on 18th October 1945.), Sardar Buta Singh v. State of M. P. ( 1962 MPLJ 255 .) and kishanchand and another v. New Shankar Kirana Stores (1971 JLJ Note 160 = C. R. No. 268 of 1971, decided on 23rd August 1971.) Thus even section 151 of the Code could not come to the rescue of the plaintiff. The trial Court was correct in not extending the time in spite of the fact that the cost as ordered by the Court was deposited on 28-7-1970 two days after the specific date fixed for depositing the same in the order dated 26-6-1970. On account of the peremptory order dated 26-6-1970 having become operative, a vested right had accrued in favour of the defendant and he could certainly insist on the suit having been dismissed because of non-compliance with the peremptory direction of the Court by the plaintiff. On account of the peremptory order dated 26-6-1970 having become operative, a vested right had accrued in favour of the defendant and he could certainly insist on the suit having been dismissed because of non-compliance with the peremptory direction of the Court by the plaintiff. I may mention here that in the present case the plaintiff did not move an application for extension of time before the expiry of the period as ordered on 26 6-1970. If such an application would have been filed, the matter might have been different and in that case the Court could exercise its inherent powers under section 151 of the Code of civil Procedure; but I express no opinion on the point as I am not called upon to do so at the moment. It is true that this is hard case looking to the fact that the plaintiff is insane and is represented by next friend and guardian; but that by itself would not be a ground to circumvent the provisions of law already settled and to extend the period for depositing the cost. The trial court was thus correct in refusing to exercise its powers under section 151 of the Code and not condoning the delay in payment of the cost as ordered by the Court on 26-6-1970. ( 8. ) IN the view I take, this appeal fails and is dismissed. In the special circumstances of the case, I order that the parties shall bear their own costs of this revision. Appeal dismissed.