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2001 DIGILAW 267 (MAD)

D. Raju v. N. Ramalingam

2001-02-27

N.V.BALASUBRAMANIAN

body2001
Judgment :- 1. This revision petition is directed against the order dated 21.6.2000 passed in unnumbered I.A.No.of 2000 in O.S. No. 389 of 1998 (C.R.19. Register No. 1348, dt. 31.1.2000) by the learned Principal District Munsif, Kumbakonam. 2. Learned District Munsif by the impugned order has dismissed the application filed by the petitioner herein for the grant of extension of time for payment of costs awarded in I.A. No. 1056 of 1999 for a period of four weeks from 3.1.2000. Learned District Munsif found that the suit O.S. No. 380 of 1998 was decreed ex parte and the petition, I.A. No. 1056 of 1999 was filed to set aside the ex parte decree and that petition was ordered on condition that the petitioner should pay to the respondent in I.A. No. 1056 of 1999 a sum of Rs. 250/- as costs on or before 3.1.2000. In I.A. No. 1056 of 1999, the learned District Munsif has ordered that on payment of Rs. 250/- on or before 3.1.2000, the petition would be allowed and on failure to pay the money, the petition would be dismissed. The above order was passed on 21.12.1999. The learned District Munsif also directed the matter to be posted on 4.1.2000. On 4.1.2000, the learned District Munsif found that the cost, as ordered, was not paid and there was no representation for the petitioner therein and hence, he dismissed the petition I.A. No. 1056 of 1999. This order, as already observed by me, was passed on 4.1.2000 and that order has become final. 3. Subsequent to that, an unnumbered I.A. was filed by the petitioner for the extension of time for payment of costs awarded in I.A. No. 1056 of 1999 for a period of four weeks. Learned District Munsif was of the view that the petition, I.A. No. 1056 of 1999 was dismissed for default of payment of conditional costs and the application seeking extension of time for payment was filed after the dismissal of I.A. No. 1056 of 1999 and hence, he held that such an application is not maintainable. In this view of the matter, learned District Munsif rejected the application, unnumbered I.A. and it is against that order, the present Civil Revision Petition is filed. 4. Learned counsel for the petitioner strenuously argued that learned District Munsif was not correct in dismissing the application as not maintainable. In this view of the matter, learned District Munsif rejected the application, unnumbered I.A. and it is against that order, the present Civil Revision Petition is filed. 4. Learned counsel for the petitioner strenuously argued that learned District Munsif was not correct in dismissing the application as not maintainable. Learned counsel referred to Section 148 of the Code of Civil Procedure and submitted that the Court has the power to enlarge the time fixed or granted by the Court from time to time. Learned counsel submitted that the Court has the power to enlarge the period even though the period fixed or granted has expired. Learned counsel submitted that the provisions of Section 148 of the Code of Civil Procedure should be so construed to advance the course of justice. According to the learned counsel for the petitioner, the learned District Munsif should not have construed the provision so strictly so as to defeat the course of justice. Learned counsel submitted that the learned District Munsif should not have gone into the question when the application was filed by the petitioner for extension of time. Learned counsel submitted that the Court has the power to extend time at any time. Learned counsel for the petitioner submitted that when the default of the petitioner was bona fide, the provisions of Section 148 of the Code of Civil Procedure should be liberally construed for the enlargement of time earlier fixed by the Court. 5. Learned counsel referred to the decision of the Supreme Court in the case of Mahanth Ram Das v. Ganga Das (A.I.R. 1961 S.C. 882) and submitted that Section 148 of the Code of Civil Procedure should be construed liberally and the Section can be invoked by the applicant at any time even though the time fixed by the Court has expired. Learned counsel submitted that the Supreme Court has held that Section 148 clothes the Court with ample power to do justice if there is sufficient cause for extension of time. Learned counsel also referred to the following observation made by the Supreme Court in the decision: — “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. 6. Learned counsel also referred to the following observation made by the Supreme Court in the decision: — “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. 6. Learned counsel referred to the decision of the Allahabad High Court in the case of Gobaradhan v. Barsati (FB) A.I.R. 1972 Allahabad 246) wherein the Allahabad High Court held that Section 148 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. Learned counsel for the petitioner strongly relied upon the decision of the Madhaya Pradesh High Court in the case of Kamaluddin v. Chhotelal (AIR 1987 Madhya Pradesh 39) wherein the Madhya Pradesh High Court has taken a similar view and held that even if in the initial order the Court may have said that if the costs are not paid before a certain date fixed for it, the suit shall stand dismissed, the court does not lose seisin of the case after the expiry of such period notwithstanding the default. Learned counsel for the petitioner referred to the provisions of Section 28 of the Specific Relief Act and the provisions of Section 5 of the Limitation Act and submitted that the principles adumbrated in Section 28 of the Specific Relief Act and Section 5 of the Limitation Act should apply in considering the provisions of Section 148 of the Code of Civil Procedure. 7. Learned counsel referred to the decision of this Court in Seethai Ammal v. Vikundam, V.C. (2000 2 L.W. 506 = ( 2000 (III) CTC 461 ) wherein S.S. Subramani, J. has held that the Court has jurisdiction under Section 148 of the Code of Civil Procedure for extension of time even though the original order was passed to the effect that if the cost is not paid within the prescribed time, the petition shall stand dismissed. The learned Judge also held that the conditional order meant that a further order is to be passed on the next hearing and hence, the Court has jurisdiction to extend time. The learned Judge also held that the conditional order meant that a further order is to be passed on the next hearing and hence, the Court has jurisdiction to extend time. Learned counsel also referred to the decision of this Court in Pakkiammal v. Anaiappan ( 2000 (III) CTC 228 ) wherein V. Kanagaraj, J. held that extension of time to comply with the order of court could be allowed even if it is sought after expiry of period originally fixed by the Court. Learned counsel referred to another decision of this Court in Muniammal v. Sakkubai (1987) 100 L.W. 1191 = AIR 1988 Madras 241 wherein this Court has taken the view that the Court has the power to extend time if the court has not become functus officio . Learned counsel therefore submitted that the view taken by the learned District Munsif is against the principles laid down in the various decisions cited by him and hence, this Court should do justice and interfere with the order passed by the learned District Munsif. 8. Learned counsel appearing for the respondent, on the other hand, submitted that on the facts of the case, the trial Court became functus officio after the final order was passed in the petition, I.A. No. 1056 of 1999 dismissing the petition and hence, the power under Section 148 of the Code of Civil Procedure is not available to the Court to extend the time. Learned counsel relied upon the following decisions in support of his submissions: — 1. Gaya Din v. Lalta Prasad (A.I.R. 1936 All. 477); 2. Md. Asraf Ali v. Nabejan Bibi (A.I.R. 1939 Calcutta 581); 3. Bajranglal v. Solaki Marwarini (A.I.R. (37) 1950 Calcutta 564); 4. P. Nasar Saheb v. P. Nabi Saheb (A.I.R. 1957 Andhra Pradesh 780); 5. Madan Gopal v. Rallis India Ltd. (A.I.R. 1957 Calcutta 598); 6. Sitaraman v. Pattabhiraman 71 L.W. 440 = A.I.R. 1958 Madras 453; 7. L.P. Jain v. Nandakumar (A.I.R. 1961 Bombay 254); 8. Tarapada v. Nepal Gazi (A.I.R. 1965 Calcutta 354); 9. Sukumaran v. Sulaiman Khan 84 L.W. 385 = (A.I.R. 1971 Mad. 454); 10. Muniammal v. Sakkubai (1987) 100 L.W. 1191 = (A.I.R. 1988 Mad. 241); 11. N.R. Nainar Mohamed v. Khaja Mohideen (1991 1 L.W. 242 = (A.I.R. 1991 Madras 29); 9. L.P. Jain v. Nandakumar (A.I.R. 1961 Bombay 254); 8. Tarapada v. Nepal Gazi (A.I.R. 1965 Calcutta 354); 9. Sukumaran v. Sulaiman Khan 84 L.W. 385 = (A.I.R. 1971 Mad. 454); 10. Muniammal v. Sakkubai (1987) 100 L.W. 1191 = (A.I.R. 1988 Mad. 241); 11. N.R. Nainar Mohamed v. Khaja Mohideen (1991 1 L.W. 242 = (A.I.R. 1991 Madras 29); 9. In so far as the decisions relied upon by the learned counsel for the petitioner are concerned, learned counsel for the respondent submitted that those cases are not applicable as in those cases the Court did not become functus officio as formal order of dismissal of the application was not made and this Court as well as the Supreme Court has taken the view that to exercise the power under Section 148 of the Code of Civil Procedure, the Court should have control over or is in seisin of the matter. 10. I have carefully considered the submissions of the learned counsel for the petitioner and the learned counsel for the respondent. There is no dispute and it is also not disputed by the learned counsel for respondent that till such time the Court is in seisin of the matter, the Court has the power to extend the time earlier fixed or granted by the Court has expired. It is also an undisputed fact that the unnumbered I.A. was filed subsequent to the dismissal of I.A. No. 1056 of 1999 and the only question that arises is whether the Court was in seisin of the matter at the time when the unnumbered application was filed. 11. On the facts of the case, the trial Court has passed an order of dismissal of the petition in I.A. No. 1056 of 1999 on 4.1.2000 on the ground that the cost was not paid as directed by the Court. The petitioner has not taken any steps to challenge the order, nor has he filed any application to review the order passed by the learned District Munsif dated 4.1.2000 and hence, the order of the Court dated 4.1.2000 has become final. The unnumbered application seeking extension of time was filed on 29.1.2000, subsequent to the dismissal of the petition, I.A. No. 1056 of 1999. I am of the view, once the Court has passed the final order, the court has become functus officio and the Court is not in seisin of the matter. The unnumbered application seeking extension of time was filed on 29.1.2000, subsequent to the dismissal of the petition, I.A. No. 1056 of 1999. I am of the view, once the Court has passed the final order, the court has become functus officio and the Court is not in seisin of the matter. So long as the Court is in seisin of the matter, the power under Section 148 of the Code of Civil Procedure would be available to the Court to extend the time earlier granted, but where the order has been passed closing the application, I am of the view that the Court has no power to extend the time. The decisions relied upon by the learned counsel for the respondent support the view I have taken. 12. Balakrishna Ayyar, J. in Sitaraman v. Pattabhiraman 71 L.W. 440 = (A.I.R. 1958 Madras 453) has held that though the Code empowers the Court in its discretion to enlarge or extend the time for doing an act, yet, it presupposes that the suit or appeal or proceeding in which time was granted is still pending, and if the suit or appeal or proceeding has reached its finality by the passing of the final order, the Court has no jurisdiction under the provisions of Section 148 of the Code of Civil Procedure to extend the time. I am in respectful agreement with the view expressed by Balakrishna Ayyar, J. 13. In Muniammal v. Sakkubai (1987) 100 L.W. 1191 = (A.I.R. 1988 Madras 241), M.N. Chandurkai, C.J., has referred to the decision of this Court in Sukwnaran v. Sulaiman Khan 84 L.W. 385 = (A.I.R. 1971 Mad. 454) wherein a learned Judge of this Court was dealing with the application under Section 148 of the Code of Civil Procedure for extension of time to pay a certain amount in a conditional decree, and found that on the date when the application was filed, the suit has already been disposed of and held that the time fixed under the conditional decree cannot be extended by the Court after the default clause had operated and that the remedy for the petitioner therein can only be by way of review or appeal. M.N. Chandurkar, C.J., in Muniammals case , has held as under: — “There can hardly be any quarrel with the proposition laid down by the learned judge. M.N. Chandurkar, C.J., in Muniammals case , has held as under: — “There can hardly be any quarrel with the proposition laid down by the learned judge. The suit had been finally disposed of in that case”. M.N. Chandurkar, C.J., has held that once the Court is not in seisin of the matter, it becomes functus officio and the power under Section 148 of the Code is not available. 14. Bearing in mind the various decisions relied upon by the learned counsel for the petitioner as well as the learned counsel for the respondent, I am of the view, the exercise of power under Section 148 of the Code of Civil Procedure would depend upon the question when the application was filed and whether the Court is in seisin of the matter or whether the Court has become functus officio . In my view, the Court has the power under Section 148 of the Code to extend the time only if the Court has not become functus offcio . In the instant case, the learned District Munsif had already dismissed the petition when the application for extension of time was filed and hence, the Court became functus officio and the power under Section 148 of the Code of Civil Procedure is not available to the learned District Munsif to extend the time earlier be granted by him. Therefore, I do not find any infirmity in the order passed by the learned District Munsif rejecting the application filed by the petitioner for extension of time. Accordingly, the C.R.P. is dismissed. However, in the circumstances there will be no order as to costs. Consequently, the connected C.M.P. is closed.