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2009 DIGILAW 624 (PAT)

Uco Bank v. Lalan Sharan Verma

2009-04-16

V.N.SINHA

body2009
JUDGEMENT V.N.Sinha, J. 1. By filing the aforesaid interlocutory application, appellant- Bank has requested this Court to extend the peremptory time of two weeks allowed under orders dated 24.11.2008 until 5.2.2009 and to accept the delayed filing of the notices and talbana etc. for fresh service of notices on respondent Nos. 2 and 2. In this connection, it is submitted that on 24.11.2008, the clerk of the learned Counsel for the appellants had gone to his village home and could not mark the list. The case, however, was taken up even in the absence of the learned Counsel for the appellants and two weeks further time i.e. till 08.12.2008 was allowed to the appellants to take steps for fresh service of appeal notice on respondent Nos. 2, 3(i) and 3(ii) under registered cover with A/D, failing which the appeal, as against them, shall stand dismissed without further reference to a Bench. It is submitted that as order dated 24.11.2008 was passed in absence of the counsel for the appellants, learned Counsel for the appellants had no knowledge of the said order and he could not take steps as was directed under orders dated 24.11.2008. Result being that the appeal stood dismissed against respondent Nos. 2, 3(i) and 3(ii) on 8.12.2008. When the appeal stood dismissed against respondent Nos. 2, 3(i) and 3(ii) on 8.12.2008, office put up note dated 28.1.2009 as to whether the whole appeal has become incompetent on account of its dismissal against respondent Nos. 2, 3(i) and 3(ii). With the aforesaid note dated 28.1.2009, about the incompetency of the appeal, the appeal was placed for orders before the Bench on 5.2.2009, when the learned Counsel for the appellants requested that the office note dated 28.1.2009 be considered after one week and filed the notices as was directed under orders dated 24.11.2008 on 5.2.2009. Having belatedly complied with the order dated 24.11.2008 on 5.2.2009, learned Counsel for the appellants filed the present I.A. No. 1037 of 2009 on 16.2.2009 praying inter alia to extend the time granted under orders dated 24.11.2008 until 5.2.2009 and accept the belated compliance made on 5.2.2009. Having belatedly complied with the order dated 24.11.2008 on 5.2.2009, learned Counsel for the appellants filed the present I.A. No. 1037 of 2009 on 16.2.2009 praying inter alia to extend the time granted under orders dated 24.11.2008 until 5.2.2009 and accept the belated compliance made on 5.2.2009. In support of plea made in the interlocutory application, learned Counsel for the appellant relied on the provisions contained in Sections 148 and 151 of the Code of Civil Procedure and submitted that even though the period originally fixed or granted under orders dated 24.11.2008 has expired on 8.12.2008, the same may be extended appreciating the special facts of the case that non-compliance resulted on account of failure of the clerk of the learned Counsel for the appellants to mark the list and for the failure of the clerk/counsel to mark the list, appellants may not be allowed to suffer. In this connection he relied on the judgment of the Hon ble Supreme Court in the case of Mahanth Ram Das v. Ganga Das, Paragraph 5, which is quoted below for ready reference: The case is an unfortunate and unusual one. The application for extension of time was made before the time fixed by the High Court for payment of deficit court fee had actually run out. That application appears not to have been considered at all in view of the peremptory order which had been passed earlier by the Division Bench hearing the appeal, mainly because on the date of the hearing of the petition for extension of time, the period had expired. The short question is whether the High Court, in the circumstances of the case, was powerless to enlarge the time, even though it had peremptorily fixed the period for payment. If the Court had considered the application and rejected it on merits, other considerations might have arisen; but the High Court in the order quoted, went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on July 13, 1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from July 8, 1954. How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it can not be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. 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. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari ILR 4 Pat 61 : AIR 1924 PC 198. No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmakund Marwari ILR 4 Pat 61 : AIR 1924 PC 198. No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council. But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions, Sections 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come. 3. Learned Counsel further relied on the Full Bench judgment of this Court in the case of Hari Lall Singh and Ors. v. Jalim Singh and Anr. reported in ILR 49 Pat 97 as also on the judgment of the Hon ble Supreme Court in the case of Chinnamarkathian alias Muthu Gounder and Ors. v. Ayyavoo @ Periana Gounder and Ors., paragraph 14. 4. Perusal of the judgment rendered in the case of Hari Lall Singh and Ors. indicates that relying on the judgment of the Hon ble Supreme Court in the case of Mahanth Ram Das (Supra), Full Bench of this Court accepted the position that petitioners can approach this Court by filing an application under Section 151 of the Code of Civil Procedure for extending the time granted, provided they can satisfy the Court about the merit of the case and that the time granted had not run out. In the case of Chinnamarkathian alias Muthu Gounder and others (Supra), Hon ble Supreme Court relying on the judgment rendered in the case of Mahanth Ram Das (Supra) as also having considered the provisions contained in Section 4 of the Tamil Nadu Cultivating Tenants Protection Act held that composite order for payment of arrears of rent by the tenant and on his failure to make such payment, orders for his eviction cannot be passed. It is thus evident that both the judgments in the case of Hari Lall Singh and Ors. and Chinnamarkathian alias Muthu Gounder and Ors. (Supra) proceed on the basis of the law laid down in the case of Mahanth Ram Das (Supra). The law laid down in the case of Mahanth Ram Das (Supra) shall have no application to the facts of the case in hand as in the case of Mahanth Ram Das (Supra), direction to pay the deficit court fee was to expire on July 8, 1954 when the counsel for the appellant requested the Vacation Bench of the High Court to extend the time but the time could not be extended as Division Bench was not sitting during vacation and the extension application requesting that the appellant be allowed to pay Rs. 1400/- immediately and balance within a month thereafter remained pending and was considered on 13th July, 1954 and was rejected on the ground that the time having already expired on July 8, 1954 extension could not be granted thereafter. Aforesaid order of the High Court refusing to extend the time was set aside observing that the extension application having been filed before the time granted had run out ought to have been considered and allowed resorting to the powers contained in Sections 148, 151 of the Code of Civil Procedure. In the instant case, the extension application has been filed alter the self operative order dated 24.11.2008 granting two weeks time to take steps for fresh service of notice, failing which the appeal shall stand dismissed without further reference to a Bench has already taken its effect. In the circumstances, belated compliance made on 5.2.2009 cannot be accepted. Request to extend the time made in I.A. No. 1037 of 2009 is rejected, however, with liberty to the appellants to take steps for restoration of the appeal as against respondent Nos. 2, 3(i) and 3(ii).