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1996 DIGILAW 131 (HP)

KULDIP CHAND v. GIAN CHAND

1996-07-19

S.N.PHUKAN

body1996
JUDGMENT S.N. Phukan, C. J.: This revision petition is by the plaintiffs against the order dated 19.10.1994 passed by the learned Sub Judge 1st Class, Amb rejecting the application of the plaintiffs for extension of time to affix the Court fee. 2. Briefly stated, the plaintiffs filed a suit, which was registered as Civil Suit No.84 of 1985 in the Court of the learned Sub Judge 1st Class, Court No. 1, Amb. The suit was decreed and it was directed that the plaintiffs shall affix the deficit Court fee of Rs.6.50 paise on the plaint within one month, failing which the suit will be deemed to have been dismissed. The judgment was delivered on 6.2.1991 and, therefore, the Court fee was to be paid by 8.3.1991. The plaintiffs did not pay the above amount within the above period. 9th and 10th March, 1991 were holidays and, therefore, on 11th March, 1991, an application was moved praying that the plaintiffs may be allowed to affix the Court fee, as directed above, which was dismissed by the impugned order. 3. Heard the learned counsel for the parties. 4. On perusal of the impugned order, it appears that the main ground on which the application was dismissed was that the Court became functus officio. In other words, according to the learned trial Court, the court had no power to extend the time. 5. A reference may be made to Sections 148 and 149 of the Code of Civil Procedure, which give ample power to the Court to extend time. This aspect was not at all considered by the learned trial Court. 6. I may refer to the decision of the Apex Court in Mahanth Ram Das v. Ganga Das, A.I.R. 1961 S.C. 882, in which case the application for extension of time to pay the deficit court fee was dismissed by the High Court. The Apex Court held that the High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment and Section 148, in terms, allowed extension of time, even if the original period fixed had expired. The apex Court also considered Section 149 of the Code of Civil Procedure and held that this Section was equally liberal and, therefore, the High Court could have invoked the above two Sections. 7. The apex Court also considered Section 149 of the Code of Civil Procedure and held that this Section was equally liberal and, therefore, the High Court could have invoked the above two Sections. 7. The Full Bench of the Allahabad High Court in Gobardhan Singh v. Barsati, AIR 1972 Allahabad 246 considered the provisions of Section 148 of the Code of Civil Procedure and held that this Section empowers the Court to extend the time even after the expiry of the period originally fixed irrespective of whether the application for extension is made before or after the expiry of that period. I am in respectful agreement with the Full Bench decision of the Allahabad High Court. 8. The Apex Court in Johri Singh v. Sukh Pal Singh & Ors., (1989) 4 S.C.C. 403 also affirmed the above view of the Allahabad High Court. 9. Situated thus, I hold that the learned trial court erred in law in holding i that the application filed after expiry of the time fixed was not tenable in law. Therefore, the impugned order is liable to be set aside. 10. As discretion has to be exercised by the learned trial court, I deem it fit and proper to remand the case to the learned trial court to examine as to whether delay of one day has been sufficiently explained, as from the impugned order, 1 do not find that this aspect was properly considered by the trial court. 11. Accordingly, the present revision petition is partly allowed. The impugned order is set aside and the learned trial court is directed to consider whether the delay has been properly explained or not. While doing so, the learned trial court shall take into consideration the law laid down by the apex court regarding condonation of delay in this regard 12. Both the parties shall appear before the trial court on 13th August, 1996. 13. The revision petition is disposed of.