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2003 DIGILAW 1731 (MAD)

Angammal v. Ramasamy and others

2003-10-23

R.BANUMATHI

body2003
ORDER: C.R.P.No.2854 of 2001: This revision is directed against the order of Sub Court, Kulithalai in I.A.No.220 of 2000 in A.S.SR.No.302 of 2000 (18.4.2001) dismissing the Application filed under Secs.148-A and 151, C.P.C. to set aside the order passed on 27.10.2000. C.R.P.No.2855 of 2001: This revision is directed against the order of Sub Court, Kulithalai in I.A.No.221 of 2000 in A.S.SR. No.302 of 2000 (dated 18.4.2001) of dismissing the application seeking for extension of time for payment of cost. 2. Relevant facts briefly be stated thus: Revision petitioner/D-1 is pitted against her husband. She is the first wife of the first respondent/Ramasamy. Saroja and Jeyalakshmi are their daughters. Plaintiffs/respondents 1 and 2 viz., Ramasamy and his second wife Angammal filed suit in O.S.No.34 of 1996 on the file of District Munsif Court, Kulithalai for Permanent Injunction restraining revision petitioner/D-1 and her men from interfering with plaintiffs possession of the suit properties. Suit properties relate to landed properties in Sithalaivai village. The suit was decreed on 23.3.2000. 3. A.S.SR.No.302 of 2000 and I.A.No.104 of 2000: Revision petitioner/D-1 preferred this appeal with a delay of five days. Along with the appeal, revision petitioner filed I.A.No.104 of 2000 to condone the delay of five days in filing the appeal. The respondents’ counsel made an endorsement stating ‘no objection’. The Petition was allowed on condition to pay Rs.100 as cost on or before 23.10.2000, failing which the petition shall stand dismissed. The case was adjourned to be called on 24.10.2000. On 24.10.2000 the Advocate were on boycott. Hence, the case was adjourned to 27.10.2000. Cost not paid; Since the conditional order was not complied with. I.A.No.104 of 2000 and Application to condone the delay in filing the appeal was dismissed. 4. Revision petitioner/D-1 did not immediately file application to set aside the order. According to her, she was suffering from Typhoid from 10.10.2000 to 12.11.2000. Hence, could to contact the counsel to comply with conditional order. Medical Certificate (dt.13.11.2000) was produced as Ex.A-1. 5. I.A.Nos.220 of 2000 and 221 of 2000: I.A.220/2000 was filed to set aside the order dated 27.10.2000. I.A.No.221 of 2000 was filed for extension of time for payment of the conditional cost. Both applications were resisted by the respondents/plaintiffs contending that the applications are filed only to protract the proceedings. 6. Medical Certificate (dt.13.11.2000) was produced as Ex.A-1. 5. I.A.Nos.220 of 2000 and 221 of 2000: I.A.220/2000 was filed to set aside the order dated 27.10.2000. I.A.No.221 of 2000 was filed for extension of time for payment of the conditional cost. Both applications were resisted by the respondents/plaintiffs contending that the applications are filed only to protract the proceedings. 6. Upon consideration of the rival contentions of both parties, learned Subordinate Judge dismissed both applications finding that after passing conditional order the Court had become functus officio. The trial Judge was of the view that after passing of the conditional order the Court is not in seisin of the matter and therefore, power under Sec.148, C.P.C. cannot be exercised to extend the time for payment of conditional cost. 7. Aggrieved over dismissal of her application, revision petitioner/D-1 has preferred these revisions. Learned counsel for revision petitioner/D-1 submitted that under Sec.148, C.P.C., Court is empowered to extend time even after the expiry of the period originally fixed. Reliance is placed upon: (1) Pakkiammal v. Anaiappan, (2000)3 M.L.J. 132 : (2000)3 C.T.C. 228 ; (2) A.I.R. 1982 S.C. 137. 8. Laying emphasis upon the decisions reported in D.Raju v. N.Ramalingam, (2001)3 L.W. 254 learned counsel for the respondents submitted that on the facts of the case after I.A.No.104 of 2000 was dismissed on 27.10.2000, the trial Court had become functus officio and hence, power under Sec.148, C.P.C. is not available to the Court to extend the time. 9. Upon careful consideration of the submissions of both sides and other available materials, the following points arise for determination in these revisions: (i) Whether Sec.148, C.P.C. gives automatic right to the party to get extension of time? (ii) Considering the conduct of revision petitioner/appellant/D-1 in not complying with the conditional, order by depositing even small amount of Rs.100, was not the trial Court justified in dismissing the application? 10. Before adverting to the facts, we may briefly refer to nature of power of the Court available under Sec.148, C.P.C. Language of Sec.148, C.P.C. is wide enough to vest the Court with undoubted jurisdiction to enlarge the time, even in a case where the period is fixed. Under the Amendment Act 46 of 1999, (w.e.f. 1.7.2002) time could be extended only for a period “not exceeding 30 days in total”. 11. Undoubtedly, Sec.148, C.P.C. allows extension of time. Under the Amendment Act 46 of 1999, (w.e.f. 1.7.2002) time could be extended only for a period “not exceeding 30 days in total”. 11. Undoubtedly, Sec.148, C.P.C. allows extension of time. Learned counsel referred to the decision of this Court in S.Seethai Ammal v. Vikundam, V.C., (2000)2 M.L.J. 438 : (2000)2 L.W. 506 : (2000)3 C.T.C. 461 , wherein S.S.Subramnai, J., has held that the Court has jurisdiction under Sec.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 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)3 M.L.J. 132 : (2000)3 C.T.C. 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. 12. On behalf of revision petitioner/D-1 thus it is submitted that the Court has power to extend the time and that the trial Court erred in dismissing the application saying that the Court has become functus officio. 13. Learned counsel for plaintiffs/respondents 1 and 2 relied upon the judgment by N.V.Balasubramanian, J. in D.Raju v. N.Ramalingam, (2001)3 L.W. 254 , wherein N.V.Blasuibramanian, J., has elaborately referred and considered number of decisions on the power of the Court under Sec.148, C.P.C. It is relevant to quote the views of the learned Judge which read thus: “The exercise of Power under Sec.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”. 14. Thus it is well settled that power under Sec.148, C.P.C. is available where the Court is in seisin of the matter. The power under Sec.148, C.P.C. is not available where the Court is not in seisin of the matter. 14. Thus it is well settled that power under Sec.148, C.P.C. is available where the Court is in seisin of the matter. The power under Sec.148, C.P.C. is not available where the Court is not in seisin of the matter. “ It has to be seen that the ground for granting extension of time is to be identified by a Court of law is the sine qua non to exercise its discretionary power vested under Sec.148. It does not mean that after the expiry of the time granted already by the Court, this section will give an automatic right to the aggrieved party to get the extension of time of that is not the tenor of the provision of law adopted by the statute. If the affidavit is vague about the actual period of absence and the actual illness, time cannot be extended that too for deposit of a small sum”. 15. Bearing the above principles in mind, in the case in hand, it is to be seen: (i) Whether the revision petitioner has satis factorily explained the reason for non compliance with the conditional order? As stated earlier, conditional order of cost of small amount of Rs.100 only, was ordered. Conditional cost was payable on or before 23.10.2000. That conditional order was not complied with till 27.10.2000. 16. According to the revision petitioner/D-1 she was suffering from Typhoid from 10.10.2000 to 12.11.2000. To substantiate her contention that she was suffering from sickness, Revision petitioner has produced Ex.A-1, Medical Certificate. As rightly pointed out by the learned Subordinate Judge, Ex.A-1 is dated 13.11.2000. Ex.A-1 cannot be taken into consideration for extending the time on the ground of sickness during the relevant time. 17. Thus on the date of filing the Applications I.A.No.220 of 2000 and 22.1.2000, the Court was not in seisin of the matter to exercise the power under Sec.148, C.P.C. Learned Subordinate Judge rightly found that the Court had become functus officio on the date when the applications were filed. There is no infirmity in the impugned order warranting interference. 18. Learned counsel for revision petitioner/D-1 submitted that D-1 being the first wife of the first plaintiff/first respondent, is deprived of her right in the family properties. It is further submitted that the first plaintiff living with his second wife P-2-Angammal, is not taking care of the Revision petitioner and the daughters. 18. Learned counsel for revision petitioner/D-1 submitted that D-1 being the first wife of the first plaintiff/first respondent, is deprived of her right in the family properties. It is further submitted that the first plaintiff living with his second wife P-2-Angammal, is not taking care of the Revision petitioner and the daughters. To allow the Applications on that ground would be a misplaced sympathy. This contention does not merit acceptance for showing indulgence in reversing the order of Subordinate Judge. 19. C.R.P.No.2854 of 2001: This revision petition is dismissed confirming the order of Subordinate Judge, Kulithalai in I.A.No.220 of 2000 in A.S.SR.No.302 of 2000 (18.4.2001). C.R.P.No.2855 of 2001: This revision petition is dismissed confirming the order of Subordinate Judge, Kulithalai in I.A.No.221 of 2000 in A.S.SR.No.302 of 2000 (18.4.2001) In view of the relationship of the parties and circumstances of the case, there is no order as to costs.