HARADHAN MANNA v. BIDHUBALA BHUNIYA — 1989 DIGILAW 38 (CAL)

J. N. HORE, J. ( 1 ) THIS revisional application is directed against. Order Nos. 118 and 119 both, dated 14. 5. 54 passed by the learned Munsif, Amta in Title Suit No. 53 of 1971 allowing the plaintiff's prayer for appointment of a handwriting expert for examining the disputed deed of agreement. ( 2 ) LATE Sudhamoy @ Sudarsan Bhuniya, the predecessor in interest of the opposite parties, instituted Title Suit No. 53 of 1971 in the Court of Munsif at Amta against the petitioner as defendant under Sections 30, 36 and 37a of the Bengal Money Lenders Act, upon the allegations that he had mortgaged the Suit property for a sum of Rs. 500 with the defendant petitioner on 16th Jaistha 1375 B. S. with interest at the rate of Rs. 4 per month and since the defendant had no money lending licence. He got an ostensible sale deed executed by the plaintiff along with an unregistered agreement for reconveyance for a sum of Rs. 500 together with 2 years interest at the said rate amounting to Rs. 480 aggregating to Rs. 980. According to the plaintiff the transaction was a loan in substance. He prayed for reopening the transaction declaring the same as loan transaction and for repayment thereafter in 10 equal instalments and for executing a deed of reconveyance by the defendant in favour of the plaintiff, Petitioner/deed of reconveyance by the defendant in favour of the plaintiff. Petitioner/defendant contested the Suit by filing a written statement in which it was pleaded, inter alia, that the disputed transaction was an out and out sale and not a loan transaction. The defendant never executed any deed of reconveyance and the purported deed of agreement for reconveyance was a forged one. It was further alleged that there was no scope for any interest and that the defendant paid the entire consideration of Rs 980. The learned Munsif decreed the Suit on 30. 5. 73. The petitioner/defendant preferred an appeal against the said judgment and decree, dated 30. 5. It was further alleged that there was no scope for any interest and that the defendant paid the entire consideration of Rs 980. The learned Munsif decreed the Suit on 30. 5. 73. The petitioner/defendant preferred an appeal against the said judgment and decree, dated 30. 5. 73 being Title Appeal No. 168 of 1973 which was allowed by the Learned Additional District Judge, 2nd Court, Howrah, who remanded the Suit to the Court below for rehearing with the directions to give an opportunity to the plaintiff to cite and examine the handwriting expert and to allow the plaintiff an opportunity to prove the agreement for reconveyance according to law. In spite of such opportunity the plain-tiff did not examine the handwriting expert nor the deed of agreement for reconveyance was proved at the time of the Trial. The Learned Munsif dismissed the Suit on 22nd December 1978. Against the said decree of dismissal the opposite party preferred an appeal being Title Appeal No. 27 of 1979 which was allowed by the Learned Sub-ordinate Judge, 2nd Court at Howrah. The Learned Sub-ordinate Judge remanded the Suit to the Court below for disposal in according with the following directions:"however, considering the entire circumstances and for the ends of justice, I think the plaintiff should be given another opportunity to examine the Ekrarnama by a Government expert. Be it mentioned that the entire cost of the expert will be borne by the plaintiff irrespective of the result of the Suit. The plaintiff/appellant is given an opportunity to file the said application for examination of the Government expert within 1 month from the receipt of the record in the Lower Court failing which the Learned Munsif shall dispose of the Suit on the materials already on record. If the expert is appointed the party shall be given an opportunity to prove the report of the handwriting expert according to law and the other side shall also be given an opportunity to adduce rebutting evidence as may be advised. Be it mentioned that only evidence recording the handwriting expert and the proving of Ekrarnama will be allowed by the Court below. The party shall not be allowed to adduce evidence on any other point". ( 3 ) THE records of the case on remand were received by the Court below on 30. 9. Be it mentioned that only evidence recording the handwriting expert and the proving of Ekrarnama will be allowed by the Court below. The party shall not be allowed to adduce evidence on any other point". ( 3 ) THE records of the case on remand were received by the Court below on 30. 9. 83 but the plaintiff/apposite parties did not take any steps for appointment of any handwriting expert within the time specified by the Appellate Court. It was only on 10th January 1984 that the opposite parties filed an application under Order 26, Rule10a of the Code of Civil Procedure for appointment of a handwriting expert. On 12th March, 1984, the opposite parties filed an application under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure for condonation of delay. By the impugned Order Nos. 118 and 119 both, dated 14. 5. 84, the Learned Munsif allowed both the applications allowing the plaintiffs prayer for appointment of a handwriting expert after condoning delay. Being aggrieved by the said Orders the petitioner moved this Court in revision and obtained the present Rule. ( 4 ) THE Learned Advocate for the petitioner has contended that the Appellate Court peremptorily fixed the date for filing application for appointment of a handwriting expert and in default the Suit was to be heard and disposed of on the evidence already on record and in view of such an Order of the Appellate Court, the Lower Court had no jurisdiction to extend the time under any circumstances and accordingly the impugned Order allowing the opposite parties to file the application for appointment of a handwriting expert beyond the time fixed by the Learned Appellate Court was illegal and without jurisdiction and is liable to be set aside. In support of his contention he has referred to the decisions in Banshi Dewan and Others v. Majahar Uddin Talukdar reported in 36 CWN 698, Haji Eakub Sheikh v. Samjan Bibi and Others reported in 44 CWN 449 and Mahanth Ram Das v. Ganesa Das reported in AIR 1961 SC 882 ( 5 ) IN Banshi Dewan's case (Supra) two Suits were ordered by the Appellate Court to be reheard on payment of certain costs to the defendants. The Orders were to the effect that if the costs were not paid within 2 months from the date of arrival of the record in the Original Court, the Suits would be dismissed. If the costs were timely paid the Suit should be retried. The plaintiff did not put in the money in time, but he put in the money sometime later under an Order of the Court passed in the absence of the defendants allowing him to do so on the ground that the fact of the arrival of the records in the Trial Court was not brought to the notice of the plaintiff's pleader by the Officer of the Court. It was held that as the condition precedent to the retrial to the Suits had not been complied with, the Suits were dismissed under Order of the Appellate Court and the Trial Court had no jurisdiction to rehear the Suits. In Haji Eakub Sheikh's case referred to above, it has been held that after making an Order under Section 174 (3) (b) of the Bengal Tenancy Act, that the application will be allowed on the applicant depositing the decretal amount by a certain date, failing which the application shall stand dismissed, the Court has no jurisdiction to extend the time, although the application therefor may be made before the expiry of the time limited, unless proper steps be taken for a review of the Order. To such a case Section 148 of the Civil Procedure Code does not apply. Section 148 does not apply to a decree or an Order of a final character but only to acts preliminary to the Final Order during the course of the proceeding. In my opinion the present case is clearly distinguishable on facts. In the first case a conditional decree was passed. The two Suits would be reheard on payment of certain costs to the defendants within a specified date in default the Suits would stand dismissed. It was an automatic Order and in default of the payment of the costs, the Suits automatically should dismissed under the Order of the Appellate Court and the Trial Court had no jurisdiction to extend the time or to rehear the Suits. In the second case also a conditional Final Order was passed. It was an automatic Order and in default of the payment of the costs, the Suits automatically should dismissed under the Order of the Appellate Court and the Trial Court had no jurisdiction to extend the time or to rehear the Suits. In the second case also a conditional Final Order was passed. The application under Section 74 (3) (b) of the Bengal Tenancy Act was conditionally allowed on the applicant depositing the decretal amount by a certain specified date failing which the application would stand dismissed. It was also an automatic Order and in default of payment within the specified time the application automatically stood dismissed and the Court had no jurisdiction to extend the time that in the present case neither any conditional decree or conditional Final Order was passed. There was no direction of the Appellate Court that in default of application by the plaintiff within the time fixed for appointment of the handwriting expert the Suit shall stand dismissed and it shall not be reheard. According to the Court's Order even in case of default the Suit would be reheard by the Lower Court and disposed of on the materials on record. The impugned procedural Order of the Learned Appellate Court is in essence in terrorem so that the plaintiff may not indulge in dilatory tactics and cause delay in hearing of the Suit. It may be mentioned here that the Learned Appellate Court thought it fit to give another opportunity to the plaintiff to get the disputed document examined by handwriting expert and prove it according to law, for ends of justice and a date was fixed by the Learned Appellate Court for making an application by the plaintiff in this regard. There was no direction that in default the Suit shall stand dismissed and would not be reheard by the Court below. In such circumstances it cannot be said that the Learned Munsif acted illegally or exceeded his jurisdiction in extending the time as fixed by the Learned Appellate Court being satisfied that there was sufficient cause for delay for which the plaintiff was not responsible. ( 6 ) THE Supreme Court decision relied on by the Learned Advocate for the petitioner, instead of supporting his contention goes against it. In that case the plaintiff's Suit was dismissed by the Trial Court on May 31, 1947. ( 6 ) THE Supreme Court decision relied on by the Learned Advocate for the petitioner, instead of supporting his contention goes against it. In that case the plaintiff's Suit was dismissed by the Trial Court on May 31, 1947. He then appealed to the High Court at Patna and on November 26, 1951 the appeal was decided in his favour on condition that he paid court fee on the amended relief of possession of properties involved in the Suit for which purpose the case was sent to the Court of first instance for determining the value of properties and for fixing the amount of court fee to be paid. After the report from the Sub-ordinate Judge was received, the case was placed for Final Orders before the High Court and Divisional Bench held that the value for the purpose of the Suit was Rs. 12,178-4-0 and that ad valorem Court fee was payable on it. There was a direction that the High Court office would calculate the amount of Court fee payable on the said valuation and inform, Counsel for the plaintiff/appellant what was the amount of the Court fee he had got to pay both on the plaint and on the Memorandum of Appeal. The plaintiff was granted 3 months time to pay the Court fees. The time would be computed from the date of communication of the calculation by the Deputy Registrar of the High Court. If the amount was not paid within the time given, the appeal would stand dismissed. If the Court fee was paid within the time given the Appeal would be allowed with costs and the Suit brought by the plaintiff would stand decreed with costs and the plaintiff would be granted a decree prayed for. The Office of the High Court gave intimation on April 8, 1954 that the deficit Court fee payable was Rs. 1987-80. The time was to expire on July 8, 1954 but the appellant was not able to find the money. The appellant's Advocate in the High Court; asked the case to be mentioned before the Vacation Judge on July 8, 1954 so that a request for extension of time could be made. No Division Bench, however, was sitting on that date and the appellant filed an application on July 8, 1954 requesting that he be allowed to pay Rs. The appellant's Advocate in the High Court; asked the case to be mentioned before the Vacation Judge on July 8, 1954 so that a request for extension of time could be made. No Division Bench, however, was sitting on that date and the appellant filed an application on July 8, 1954 requesting that he be allowed to pay Rs. 1400 immediately and the balance within a month thereafter. The application was placed before a Division Bench which held that by virtue of the Order of the Bench the appeal already stood dismissed as the amount was not paid within the time given. The appellant then moved an application under Section 151 which was rejected by the Division Bench which felt that the proper remedy was review. The appellant then filed another petition under Section 151 read with Order 47, Rule 1 of the Code of Civil Procedure setting out the reasons why he was unable to find his money. This application for review was heard on September 27, 1955 by a Division Bench which held that the application did not fall within Order 47, Rule 1. It was also held that Section 148 and Section 149 were not also applicable inasmuch as this Section applied only to cases which were not anally disposed of and the time could be extended only before the Final Order was actually made. The request to extend the time under inherent powers of the Court was also rejected on the same ground. Appellant then moved the High Court for a certificate which was granted and the appellant filed the present appeal before the Supreme Court. The Supreme Court has held as follow:"the short question is whether the High Court, in the circumstances of the case was powerless to enlarge the time, even though it had per-emptorily fixed the period for payment. If the Court had considered the application and rejected it on merits, other considerations might have arisen but the High Court in the Order quoted, went by the letter of the Original Order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those Sections could be invoked by the applicant, when the time had not actually expired. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those Sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on July 13, 1954, when it was actually heard. The Order, though passed after the expiry of the time fixed by the original judgment, would have operated from July 8, 1954. How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this Appeal. These Orders turn out, often enough to be inexpedient. Such procedural Orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in Order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extent it. Such Orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a Suit or proceeding even though a Final Order had been passed. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari, ILR 4 Pat 612: (AIR 1924 PC 198 ). No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council. But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code of Civil Procedure were filed. But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions, Sections 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable. sympathy, but to whose aid it erroneously felt unable to come. ( 7 ) IN our opinion, the High Court was in error on both the occasions. Time should have been extended on July 13, 1954, if sufficient cause was made out and again, when the petitions were made for the exercise of the inherent powers. (emphasis supplied ). I am, therefore, of the opinion that the impugned Order of the Appellate Court did not completely estop the Lower Court from taking note of events and circumstances which happened within the time fixed and if the Learned Munsif was satisfied that these events and circumstances were sufficient cause for the delay in making the application and extended the time, it cannot be said that the Learned Munsif acted illegally and in excess of his jurisdiction. I am, therefore, unable to accept the contention raised on behalf of the petitioner. ( 8 ) IN the result, the revisional application is dismissed and the Rule is discharged. All interim Orders are vacated. The Lower Court records be sent down at once. The Learned Munsif will proceed with the rehearing of the Suit as expeditiously as possible. Rule discharged.