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2005 DIGILAW 904 (MAD)

K. Rangasamy Gounder v. Muthusamy Gounder & Others

2005-06-22

R.BANUMATHI

body2005
Judgment :- This revision is directed against the order made in I.A.No.1506A/2002 in O.S.No.112/2000 by the District Munsif, Gobichettipalayam, extending the time to pay the conditional cost, by restoring I.A.No.658/2002. 2.The revision arises under the following circumstances:- O.S.No.112/2002 was filed by the Revision Petitioner/ Plaintiff for declaration and Permanent Injunction. The suit property relates to property in New S.No.549/20 (Old S.No.89) and the cart track thereon and prayed for 20 lincs on the eastern side. The Plaintiff traces his title to the Sale Deed dated 13.8.1973 under which the Plaintiff and his father Karupanna Gounder have earlier filed the suit in O.S.No.10/1976 for declaring their right and title regarding the suit cart track. In the said suit, in I.A.No.130/1976, an Advocate Commissioner was also appointed to note down the physical features of the cart track. The suit O.S.No.112/ 2000 was filed alleging that the Defendants are attempting to cause damage to the suit cart track and the Plaintiff has filed the suit for declaration of his right to the cart track and for Permanent Injunction. 3. The suit was filed on 23.3.2000. The Defendants have entered appearance. But they have not filed the Written Statement. On 21.6.2002, for non filing of Written Statement, the Defendants were set exparte; the suit was decreed exparte on 24.6.2002. To set aside the exparte Decree, the Defendants have filed I.A.No.658/2002. That application was allowed on condition of payment of cost of Rs.5000/- on or before 21.10.2002. The application was ordered to be called on 22.10.2002. The cost was not paid and since the conditional order was not complied with, I.A.No.658/2002 was dismissed on 22.10.2002. 4.I.A.No.1506/2002:- This application was filed under Or.9, R.9 CPC r/w Sec.151 CPC to restore I.A.No.658/2002 which has been dismissed on 22.10.2002. This application was filed on 30.10.2002. Objection raised by the Plaintiff that after dismissal of the petition in I.A.No.658/2002, the Court has become functus officio was negatived by the High Court. I.A.No.1506/2002 was allowed, ordering restoration of I.A.No.658/2002 and extending time for paying the cost. 5. Aggrieved over the order of restoring I.A.No.658/2001 and extending time for payment of cost, Revision Petitioner/ Plaintiff has preferred this revision. I.A.No.1506/2002 was allowed, ordering restoration of I.A.No.658/2002 and extending time for paying the cost. 5. Aggrieved over the order of restoring I.A.No.658/2001 and extending time for payment of cost, Revision Petitioner/ Plaintiff has preferred this revision. The learned counsel for the Revision Petitioner has submitted that on the facts of the case, trial Court has become functus officio after final order was passed in I.A.No.658/2002 and hence the Court had no power to extend the time by restoring the application. In support of his contention, the learned counsel has relied upon the decision reported in 2001 1 TLNJ 291. 6. The learned counsel for the Revision Petitioner has submitted that the Court has the power to extend time fixed to pay the cost. The learned counsel has submitted that Section 148 CPC should be liberally construed so as to advance substantial justice. Submitting that after the Amendment Act 2002, the Court has the power to extend the time by thirty days to do any act prescribed or allowed by the Court and that the District Munsif has rightly ordered restoration of I.A.No.658/2002 and that there is no sufficient reason warranting interference. 7. Upon consideration of the submissions and the impugned order and the relevant materials on record, the following points arise for consideration in this revision. (i) Whether the Court has powers to enlarge the time fixed or granted by the Court to pay the cost by restoring I.A.No.658/2002 which was dismissed on 22.10.2002 ?; (ii) Whether Section 148 CPC empowers the Court to extend the time to pay the cost condition precedent?; and; (iii)Whether the impugned order invoking the inherent power under section 151 CPC enlarging the time can be sustained?' 8.I.A.No.658/2002 was filed to set aside the exparte decree passed on 24.6.2002. For non compliance of the conditional order by paying the cost, the application was dismissed on 22.10.2002. I.A.No.1506/2002 has been filed under Or.9 R.9 and Sec.151 CPC to restore I.A.No.658/2002. The trial Court has ordered restoration of I.A.No.658/2002 permitting the payment of cost. Admittedly, the order reads, The decretal order does not indicate as to the time granted or how much was the time extended for payment of cost. 9. Be that as it may, let us consider the main point whether the Court was right in extending their time by restoring the application I.A.No.658/2002. Admittedly, the order reads, The decretal order does not indicate as to the time granted or how much was the time extended for payment of cost. 9. Be that as it may, let us consider the main point whether the Court was right in extending their time by restoring the application I.A.No.658/2002. Time and again, Courts have held that the power under 148 CPC would be available to the Court to extend the time earlier granted. So long as the application is pending and the Court is in seisin of the matter. The Code empowers the Court to enlarge or extend the time for doing the act prescribed or allowed by the Court. Once the suit, appeal or proceeding has reached finality by passing of the final order, the Court has no jurisdiction under Sec.148 CPC to extend the time. Thus it pre-supposes that the suit or appeal or proceeding is pending before the Court to do any act prescribed or allowed by the Court. For this settled position, we may usefully refer to, AIR 1958 Mad 452 AIR 1958 Mad 241 10.Identical case arose before Justice N.V.Balasubramanian where the suit was decreed exparte. Conditional order was not complied with. After the expiry of time, application was filed under Sec.148 CPC for extension of time. The learned Judge has held that the Court has no power to extend the time when the Court has become functus officio. We may usefully refer to the Judgment reported in 2001 1 TLNJ 291 wherein the learned Judge has elaborately dealt with all the case laws on the subject and held thus :- "The exercise of power under section 148 of the Code of Civl Procedure would depend upon the question when the application was filed and whether the Court is in seisin of the mater 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 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 officio. 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 certain granted." The above observation clearly applies to the case in hand. By dismissing the application in I.A.No.658/2002, the Court has become funtus officio. 11. Perhaps being conscious of the same, the application I.A.No.1506/2002 was not filed under Section 148 CPC but filed under Or.9 R.9 read with Sec.151 CPC invoking the inherent jurisdiction of the Court. In support of the contention that the application is not maintainable, the learned counsel for the Respondent has relied upon 2000 (3) CTC 228 wherein Justice V.Kanagaraj has held that the inherent powers of the Court under section 151 CPC could be invoked for extension of time and further held that non-quoting of Sec.151 CPC would not dis-entitle the Petitioner to seek the relief. In the injunction suit, the learned Judge has held that the extension of time to comply with the order of the Court could be allowed even if it is sought after expiry of period originally fixed by the Court. This decision was considered by Justice N.V.Balasubramaniam along with other decisions. Inherent jurisdiction of the Court cannot be invoked wherein the matter has reached finality. This Court is in respectful agreement with the view expressed by Justice N.V.Balasubramaniam. 12. The learned counsel for the respondent has drawn the attention of the Court to Sec.148 CPC wherein the Section has been amended under the CPC Amendment Act 2002, introducing the expression "not exceeding thirty days". Section 148 reads : Sec.148 Enlargement of time:- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, [not exceeding thirty days in total] even though the period originally fixed or granted may have expired. Section 148 reads : Sec.148 Enlargement of time:- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, [not exceeding thirty days in total] even though the period originally fixed or granted may have expired. On behalf of the Respondent it is submitted that as per the amendment, thirty days could be granted to do any act prescribed or allowed by the Court. This argument has no merits, mainly for two reasons, Firstly, the Respondent/Defendant have not invoked Sec. 148 but invoked only the inherent powers of the Court under section 151 CPC; Secondly, the expression "not exceeding thirty days in total" has been introduced only to minimise the procedural delay for any act prescribed or allowed by the Code. The Defendant who had been a defaulter cannot take advantage of the same. 13. CPC Amendment Act, 1999 has introduced in Section 148 CPC a period of limitation not exceeding thirty days in total for which, Courts in its discretion can enlarge time for doing any act prescribed or allowed by the Code. S.148 applies only when any time is fixed for the doing of "any act prescribed or allowed by this Code." 14. Time granted by the Court for payment of costs while setting aside an exparte decree under Or.9, R.13 as a condition precedent thereto is not an act prescribed or allowed by the Code. Section 148 CPC does not apply to such a case. 15. Section 148 only enables the Court to enlarge the said period to do any act prescribed or allowed by the Code. Emphasis is on "to enlarge the time to do any act prescribed or allowed by the Code". To explain the act prescribed or allowed by the Code, we may enumerate few instances. ** Sec.148 - for payment of Court fee ** Or.7.R.11(b)(c) - for correction of valuation and supply of requisite stamp ** Or.8 R.9 - For filing additional pleadings ** Or.9 R.9; Or.9 R.13- To pay costs (When the petition is pending) ** Or.16 R.2 - For payment of expenses ** Or.23 R.1 - for costs when permitting withdrawal of suits. ** Or.41 R.3 - Amendment of memo for appeal 16. ** Or.41 R.3 - Amendment of memo for appeal 16. Thus Sec.148 CPC applies to extend the time to do any act prescribed or allowed by the Court only when the matter is pending before the Court and the Court is to grant time not exceeding thirty days with a view to minimise procedural delay. When I.A.No.658/2002 has reached the finality, there is nothing more to do any act prescribed or allowed by the Code. Hence it would only be proper to hold that with the dismissal of the application when the Court has become functus officio, Sec.148 cannot be invoked. The effect of Sec.148 (prior to amendment) remains the same even after the amendment by inserting the expression "not exceeding thirty days". In matters where the Court has become functus officio, inserting of expression time by thirty days is of no avail to the Respondent/ Defendant. 17. What otherwise could not be done through the prior provision, Sec. 148 is sought to have been obtained by invoking the inherent jurisdiction of the Court under section 151 CPC. It is well settled that where the Code contains specific provisions, it would meet the instances of the case, inherent jurisdiction should not be invoked. In AIR 1970 SC 997 , (Nainsingh Vs.Koonwarjee) the Supreme Court has held: Under inherent power of Court recognised by Sec.151, a Court has no power to do what is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. Further the power under S.151 of the Code cannot be exercised as an appellate power. 18.Holding that the inherent power of the Court is complementary to the powers conferred under the Code and that the same cannot be exercised inconsistent with the provisions of the Code, in AIR 1966 SC 1899 (Ramchand & C.Vs.Kanhayalal) the Supreme Court has held : The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, that give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section151 they do not control the undoubted power of the Court to make a suitable order to prevent the abuse of the process of the Court. In terms of Sec.148 CPC, the Defendant could not have obtained extension of time for paying the conditional cost. When that is not permissible under section 148 CPC, the same cannot indirectly be obtained by invoking the inherent jurisdiction of the Court under section 151 CPC. 19. Therefore, the order made in I.A.No.1506A/2002 in O.S.No.112/2000 by the District Munsif, Gopichettipalaym is set aside and this revision petition is allowed. The order of dismissal in I.A.No.658/2002 continues to hold good. 20. Consequently, CMP No.1255 of 2004 is also dismissed. In the circumstances of the case, there is no order as to costs.