ARJUNAKUTTAN v. MOM DEVARAJAN — 1987 DIGILAW 487 (KER)

Judgment :- 1. By the judgment dated 30th September, 1983 in OS No. 402 of 1981 of the Additional Munsiff's Court, Alleppey, the court allowed to recover vacant possession of the plaint schedule shop room in the following terms: "In the result the suit is decreed as follows. The plaintiff is allowed to recover vacant possession of the plaint schedule shop room. But in case the defendant pays into court within 15 days from the date of the decree the entire arrears of rent till date of decree with interest at the rate of 6 percent per annum from the respective dates for payment of rent till date of decree and full costs of the suit, then the defendant shall be relieved of the forfeiture incurred by him and he shall not be liable to be evicted in execution of this decree. In case the defendant fails to deposit as directed the plaintiff shall also be allowed to recover arrears of rent from July, 1980 till date of suit with interest at 6 percent per annum from the dates of default and future rent from the date of suit till date of recovery of possession or for three years whichever is earlier and costs of the suit." The arrears of rent etc. were deposited by the defendant only on 14-8-1984 along with IA No. 1530 of 1984 to set aside the decree for eviction and for dismissal of the plaint. Subsequently the defendant also filed IA No, 387 of 1985 on 18-3-1985 to enlarge the time originally fixed in the judgment for deposit of arrears etc. The lower court dismissed both these applications. In this C. R. P. the defendant is challenging the common order dismissing these applications. 2. According to the defendant-revision petitioner, what was intended by the trial court while passing the conditional judgment was that the deposit should be made within 15 days from the date of signing of the decree. The decree was signed only on 30-7-1984. Therefore the deposit made on 14-8-1984 was within 15 days of the signing of the decree and therefore the deposit ought to have been accepted as proper compliance with the direction in the judgment. It was further pointed out that the judgment directed the deposit of cost of the suit also and the cost could be ascertained only after the signing of the decree. It was further pointed out that the judgment directed the deposit of cost of the suit also and the cost could be ascertained only after the signing of the decree. However, according to the 2nd plaintiff, who is the respondent herein, although the decree was signed only on a later date, the date of the decree is that of the judgment itself and therefore the defendant failed to comply with the condition mentioned in the judgment, and therefore the order of tile lower court is perfectly legal. 3. The lower court invoked S.114 of the Transfer of Property Act in order to pass the conditional judgment allowing the defendant to pay off the arrears. S.114 of the Transfer of Property Act is as follows: "114. Where a lease of immovable property has determined by forfeiture for nonpayment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall bold the property leased as if the forfeiture bad not occurred." In the judgment the trial court noticed that the defendant did not specifically pray for any relief under S.114 of the Transfer of Property Act. However, the court took into consideration the various aspects of the case and granted relief under the said Section. 4. Under S.114, the lessee is to pay the rent arrears, interest and cost of the suit at the hearing of the suit or give sufficient security as the court thinks sufficient for making such payment within 15 days. In Mulla's Transfer of Property Act (7th Edition), page 763, the learned author has observed as follows: "Having regard to the practice on the original side of the Bombay and Calcutta High Courts it will be difficult, if not impossible, for the tenant to comply strictly with the provision of this section, for the costs cannot possibly be paid or tendered at the hearing or even within 15 days as they have to be ascertained on taxation which takes considerable time. It is submitted the Court will construe the section liberally and direct that security be given for payment of the costs within fifteen days after the costs are taxed and allocator issued." 5. One of the grounds urged by learned counsel for the defendant is that the casts could be ascertained only after the decree is finalised. The payment envisaged under S.114 is to be done at the hearing of the suit. Failing this, the lessee may give security for the payment which has to be effected within 15 days. That is the condition for granting relief under S.114, T.P. Act. In Namdeo Lokman Lodhi v. Narmadabai and others (AIR 1953 SC 228) the Supreme Court held that the entire conduct of the lessee was relevant in granting relief under S.114, TP Act, since the relief under that provision is an equitable relief. In several reported cases we come across instances where relief has been refused when the lessee has been a persistent defaulter, or has raised frivolous or vexatious defences, or has withheld rent for a considerably long period see Namdeo Lokman Lodhi v. Narmadabai and others (AIR 1953 SC 228), Narsingh Das v. Permeshwari Das (AIR 1962 Allahabad 65) and Kishanlal Singol v. Hari Kisson (AIR 1956 Assam 113). The primary condition in S 114, T P. Act is to pay or tender to the lessor the rent in arrears, interest and full casts of the suit. Alternatively the lessee may give security to pay these amounts within 15 days. Under the circumstances it is doubtful whether the court is empowered to extend the time fixed under S.114, T.P. Act. 6. In any view of the case the defendant has not at all given any explanation for not remitting atleast the arrears of rent and interest within the time allowed by the court. The cost of the suit was only a small amount compared to the arrears of rent and interest. In case the defendant was unable to deposit the cost of the suit, he could have prayed for sanction to furnish security for the approximate cost that maybe payable by him. Without even attempting to substantially comply with the condition in the judgment he waited for about 10 months to make the deposit. In case the defendant was unable to deposit the cost of the suit, he could have prayed for sanction to furnish security for the approximate cost that maybe payable by him. Without even attempting to substantially comply with the condition in the judgment he waited for about 10 months to make the deposit. Under R.6A of 0.20 CPC the last paragraph of the judgment shall contain in precise terms the relief which has been granted by any judgment. Sub-rule (2) of R.6A provides that every endeavour shall be made to ensure that the decree is drawn up atleast within 15 days from the date of the judgment. Even if the decree is not drawn, the aggrieved party may request the court to certify that the decree has not been drawn up and on that basis file an appeal against the judgment even without filing of a copy of the decree. In such a case the last paragraph of a judgment shall be deemed to be a decree for the purpose of execution. It may also be noticed that as provided in R.3 of 0.20, once the judgment is signed it shall not be altered or added to, save as provided in S.152 or on review. Under R.196 of the Civil Rules of Practice, within 10 days from the date of judgment, each party shall file a statement of the cost and expenses incurred by him in the prescribed form together with Advocate fee certificate. That rule also enables every party to inspect and take a copy of the said statement or the statement prepared by the officer of the court, as the case may be. There fore it was not difficult for the defendant to find out the cost, if he bad really wanted to deposit the cost also. Learned counsel for the plaintiff also contended that S.148 of the Code of Civil Procedure empowers the court to grant further time only for the doing of any act prescribed or allowed by the CPC. It was also pointed out that S.149 of the Code confers a specific power to make up deficiency of court fee. In Mahanth Ram Das v. Ganga Das (AIR 1961 SC 882) the Supreme Court was only dealing with the power of the court to extend time for payment of deficit court fee. 7. It was also pointed out that S.149 of the Code confers a specific power to make up deficiency of court fee. In Mahanth Ram Das v. Ganga Das (AIR 1961 SC 882) the Supreme Court was only dealing with the power of the court to extend time for payment of deficit court fee. 7. In P. K. Sukumaran v. Sulaiman (AIR 1971 Madras 454) the Madras High Court held that the court loses seisin over a suit which is decreed on condition that a certain amount is paid within a specified time and in default the suit will stand dismissed. In H A. Patil v. Y.L. Yadav (AIR 1983 Bombay 60) the Bombay High Court also held that after passing a conditional decree the court has no jurisdiction to extend the rime fixed under the decree for deposit of sale price within the time fixed in decree. In Parmeshri v. Naurata (AIR 1984 Punjab and Haryana 342) the Punjab & Haryana High Court held that the court is not competent to extend any time fixed under the decree and that S.148 CPC applies only to procedural orders and not to conditional decrees. In Budhulal Kasturchand v. Chhotelal and others (AIR 1977 MP 1-FB) the Madhya Pradesh High Court was considering only a case where there was no formal order disposing of the suit, when the application for extension of time for payment of cost was filed, even though the suit was adjourned on payment of costs as a condition precedent. 8. The first ground pressed by learned counsel for the defendant is that even under the judgment the court granted the defendant 15 days' time from the date of the decree and that 15 days can only be from the date of signing of the decree even though the decree bears the same date as that of the judgment. As stated above, the trial court was exercising its powers under S.114 of the Transfer of Property Act and so the judgment has to be accordingly interpreted. Therefore the defendant was bound to deposit the costs within 15 days of the date of the decree, namely the date of the judgment itself. The second contention is that in any view of the case the defendant's prayer for extension of time ought to have been allowed. Therefore the defendant was bound to deposit the costs within 15 days of the date of the decree, namely the date of the judgment itself. The second contention is that in any view of the case the defendant's prayer for extension of time ought to have been allowed. It is highly doubtful whether the court is empowered to extend the time statutorily fixed under that Section. More over, the only ground for extension of time was that the defendant did not know the actual amount of costs of the suit. Even so, he could have deposited the arrears of rent and interest and furnished security for the approximate costs. By the judgment the court granted 15 days' time. There was no attempt atleast to substantially comply with the direction in the judgment. Being a conditional decree the court which passed the decree has no jurisdiction to extend the time fixed in the decree. In any view of the case since the defendant did not even substantially comply with the condition by depositing atleast the arrears of rent and interest within the time fixed, there is no sufficient ground to grant the prayer for extension of time. Under the circumstances, I hold that there is no illegality or jurisdictional error in the order of the lower court. Accordingly the C.R.P. is dismissed.