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2002 DIGILAW 647 (MAD)

Uchimahali alias Thurai v. Nagoor Kani

2002-07-19

P.SATHASIVAM

body2002
ORDER: This civil revision petition is filed against 1996 by the District Munsif, Nanguneri. The I.A. was filed for an order to extend the time to pay the cost under Sec.148 of the Code of Civil Procedure. The said application was dismissed as not maintainable since the Court had become functus officio and as the Court cannot extend the time. The revision is against this order. 2. On notice, learned counsel for the respondent submits that on merits also, there are no bona fides in the application since the suit was filed in the year 1996 and written statement had not been filed all these years and therefore, the application was only to drag on the matter. 3. Though this Court has taken a view, in D.Raju v. N.Ramalingam, (2001)1 T.L.N.J. 291, holding that if a conditional order is not complied with and the application is dismissed on that ground, the matter reaches finality and the Court has no power thereafter to extend the time since it becomes functus officio. However, Mr.P.Peppin Fernando, counsel for the petitioner, by referring to two judgments of this Court in Pakkiammal v. Anaiappan, (2000)3 C.T.C. 228 and Seethai Ammal v. P.C.Vaikundan, (2000)2 L.W. 506 submitted that the Courts have taken the view that petitioners should be given opportunity to contest the suit and that the Courts should be liberal in allowing the request of the party who comes forward, after realising his fault, seeking for an extension of time. N.V.Balasubrmanian, J. in D.Raju’s case, has distinguished the judgment in Pakkiammal’s case, and other decisions contra on the ground that once the petitions are dismissed and final orders have been passed, then the Court becomes functus officio. The learned Judge has taken the view that both this Court, in the decisions referred by him, as well as the Supreme Court has taken the view that in order to exercise the power under Sec.148 of the Civil Procedure Code, the Courts should have control over it. 4. I am not inclined to go into the legal question raised in this case since on merits, I find that the application is not bona fide. 4. I am not inclined to go into the legal question raised in this case since on merits, I find that the application is not bona fide. The reason is that the suit was filed in the year 1996 and the petitioner filed his written statement along with his petition; in order to give him an opportunity, the ex parte order dated 28.4.1999 was set aside and he was granted time to pay the cost of Rs.200 on or before 24.11.1999 and the final order, dismissing the application was made on 29.11.1999. He had thereafter filed an application on 21.12.1999, nearly one month after the expiry of the specified time and the final order. The reason stated in the affidavit filed by him that he was taking country treatment for jaundice has not been established by filing relevant certificates or by examining himself in order to prove the same. 5. Hence, on merits, I do not find any ground to grant the relief sought for by the petitioner. The civil revision petition fails and it is accordingly dismissed. No costs.