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2007 DIGILAW 527 (MAD)

P. Sengottaian v. M. K. Mani & Another

2007-02-08

R.BANUMATHI

body2007
Judgment :- This Civil Revision Petition is directed against the order dated 110. 2000 passed by the Principal District Judge, Erode in I.A.No.708 of 1999 in unnumbered Appeal Suit, dismissing the Application filed under Section 5 of the Limitation Act for non-compliance of conditional order of payment of cost. First Defendant is the Revision Petitioner. 2. The First Respondent herein filed O.S.No.196 of 1998 on the file of First Additional District Munsif, Erode for Permanent Injunction, restraining the Petitioner / First Defendant from interfering with the immovable properties at Villarampatti Village, Erode Taluk. The Suit was decreed on 22.01.1999. Aggrieved by the same, the Petitioner has filed an Appeal before the District Court, Erode with a delay of 16 days. I.A.No.708 of 1999 was filed under Section 5 of the Limitation Act to condone the delay of 16 days in filing the First Appeal. That application was allowed on condition that the Petitioner should make a payment of cost of Rs.100/-each to the Respondents on or before 30.10.2000. The cost was not paid within the stipulated time and hence, the Application under Section 5 of the Limitation Act was dismissed, which is challenged in this Revision Petition. 3. According to the Petitioner, he has handed over the cost to his Advocate Clerk as early as on 110. 2000, but due to pressure of work, the said Advocate Clerk did not pay the cost amount to the Respondents within the time frame and non-payment of cost was neither deliberate nor wilful. 4. Heard the submissions of the learned counsel for the Petitioner and the Respondents. 5. Learned counsel for the Petitioner has contended that the Petitioner was neither careless nor negligent and that the cost amount was paid to the Advocate Clerk within the time. It was further submitted that an opportunity is to be given to the Petitioner to pursue the First Appeal. 6. Of course, in not paying the cost, there is some lapse on the part of the Petitioner. When the Application came up for hearing, the Petitioner ought to have filed Application under Section 148 C.P.C seeking extension of time. Had such Application been filed, the First Appellate Court might have extended the time for payment of cost. But, that was not done. However, that technical flaw need not be an impediment in granting relief to the Petitioner. 7. Had such Application been filed, the First Appellate Court might have extended the time for payment of cost. But, that was not done. However, that technical flaw need not be an impediment in granting relief to the Petitioner. 7. Recently in the decision reported in Gowri Ammal ..Vs.. Murugan and others ( 2006 (3) C.T.C. 418 ), a question was referred to the Division Bench "..... whether the Court has jurisdiction to entertain a petition for extension of time under Section 148 read with Section 151 C.P.C?" The Division Bench referred the decision reported in Salem Advocates Bar Association, Tamil Nadu ..Vs.. Union of India ( 2005 (6) S.C.C. 344 ) wherein the Supreme Court held that upper limit fixed in Section 148 C.P.C cannot take away inherent powers of the Court to pass orders for ends of justice and to advance substantial justice, under Section 148 C.P.C, the Court can enlarge the time fixed by the Court. Since Section 148 C.P.C confers ample powers regarding enlargement of time, this Court can certainly extend the time for payment of cost. 8. Under Section 96 C.P.C, party has a statutory right of appeal. Right of First Appeal is not a matter of procedure, but as a substantive and vested right. That vested right of the Appellant to challenge the Judgment and Decree cannot be taken away. 9. To enable the Petitioner / Appellant to pursue the First Appeal, it is necessary to set aside the Impugned Order since the Suit is of the year 1998 and the Application is of the year 1999. The First Respondent / Plaintiff is to be compensated by enhancing the cost. 10. In the result, the order dated 110. 2000 of the Principal District Judge, Erode in I.A.No.708 of 1999 in unnumbered Appeal Suit is set aside and this Civil Revision Petition is allowed. I.A.No.708 of 1999 is allowed on payment of cost of Rs.500/-to the First Respondent within a period of four weeks from the date of this order, failing which the order of the Appellate Court dated 110. 2000 shall hold good. The connected C.M.P.No.2362 of 2001 is closed.