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2012 DIGILAW 1971 (RAJ)

Mohan Lal Saini v. Pawan Kumar Sharma

2012-09-18

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—This order is disposing of application under Section 151 CPC filed by the appellant for extension of time undertaken by him for furnishing written undertaking in compliance of order dated 9.7.2012 passed in S.B. Civil Second Appeal No. 66/2012. 2. Brief relevant facts for the disposal of this application are that the respondent-landlord filed suit for eviction against tenant-appellant from the suit premises before the trial Court in the form of Civil Suit No. 182/2003 and the same was decreed vide judgment and decree dated 23.1.2006 and the Appeal No. 2/2006 filed by the appellant under Section 96 CPC was dismissed by the appellate Court vide judgment and decree dated 5.1.2012. The aforesaid civil second appeal under Section 100 CPC was filed by the appellant in which the respondent appeared through his counsel and appeal was dismissed vide order dated 9.7.2012 as not pressed as the parties agreed to dispose of the same on the following terms and conditions:- "1. Defendant-appellant undertakes to hand over vacant and peaceful possession of the rented premises to the plaintiff-respondent on or before 31st December, 2013. The plaintiff respondent shall not execute the impugned decree of eviction/dispossession till then. 2. Defendant-appellant undertakes to pay or deposit the arrears of rent/mesne profit due till now within a period of one month at the rate of Rs. 150/- per month and to further continue to pay or deposit the future mesne profit by 10th day of each succeeding month till date of actual delivery of possession at the above rate. 3. Plaintiff-respondent shall furnish details of his bank account to the appellant within a period of 15 days failing which it will be open for the appellant to deposit the amount of rent in the trial Court. 4. Defendant-appellant further undertakes that they will not sublet, assign or part with the possession of the rented premises or any part thereof in favour of anyone else and would not create any third party interest in the same during the aforesaid period. 5. Defendant-appellant shall furnish a written undertaking incorporating the aforesaid conditions in the trial Court or before this Court with an advance copy to the learned counsel for the respondent within a period of 15 days from today. 6. 5. Defendant-appellant shall furnish a written undertaking incorporating the aforesaid conditions in the trial Court or before this Court with an advance copy to the learned counsel for the respondent within a period of 15 days from today. 6. If the appellant do not comply with any of the aforesaid terms and conditions and/or fail to make payment of arrears of rent as directed above or fail to make payment of future rent/mesne profit as directed above for succeeding two months then it will be open for the plaintiff-respondent to get the decree of eviction/dispossession passed in his favour executed even before the aforesaid date and to initiate contempt proceedings in this Court. 7. Liberty is given to the plaintiff-respondent to receive/obtain the arrears of rent lying deposit with the bank. The bank concerned is directed to release/pay the amount of rent deposited by the defendant-appellant to the plaintiff-respondent." 3. In compliance of the aforesaid order dated 9.7.2012, the appellant was to furnish a written undertaking incorporating the aforesaid conditions in the trial Court or before this Court within a period of 15 days from the date of the order but the required undertaking was filed before the trial Court on 5.9.2012 after the expiry of aforesaid period of 15 days and vide order dated 13.9.2012 learned trial Court refused to take the undertaking on record on the ground that it has not been filed within the period of 15 days fixed by the aforesaid order of this Court. The trial Court further directed that warrant for possession may be issued as after the dismissal of appeal by the first appellate Court the landlord-respondent filed Execution Petition No. 9/11 before the trial Court and the same was pending. Apprehending that in compliance of warrant for possession issued by the trial Court the suit premises may be got vacated from him despite the fact that the same was to be vacated on or before 31.12.2013 in the light of order dated 9.7.2012, the appellant has moved the present application with the prayer that the period of 15 days so fixed to file the aforesaid undertaking may be extended till 5.9.2012 the date on which the written undertaking has already been filed by the appellant before the trial Court. In support of the application affidavit of appellant has also been filed. In support of the application affidavit of appellant has also been filed. Although the respondent appeared through his counsel but reply to the application and counter affidavit has not been filed. 4. It was submitted by the learned counsel for the appellant that the present is a sort of mercy petition with a prayer that the time for filing of the requisite undertaking may be extended till 5.9.2012 the date on which the same has already been filed in the trial Court as in absence of extension the time agreed by the respondent to vacate the suit premises on or before 31.12.2013 will be rendered useless as the executing court has issued warrant for possession. It was further submitted that the undertaking could not be filed within the time fixed by the reason that the counsel appearing for the appellant before the trial Court inadvertently or carelessly failed to do so despite the fact that the necessary instructions were given by the appellant to him and it is well settled legal position that a party must not suffer from the default of his counsel. It was further submitted that even if the period of 15 days was fixed with the consent of the parties, even then the Court has inherent power to extend the same under Section 151 CPC and the extension cannot be refused on the ground that the respondent is not agreed to it. It was also submitted that reply to the application and counter affidavit has not been filed by the respondent disputing the cause shown for not filing the undertaking within the time fixed. 5. On the other hand, the learned counsel for the respondent hotly contested the prayer made on behalf of the appellant and it was submitted that the time fixed by the consent of parties to do certain thing within the time so fixed cannot be extended by the Court unless the other party also gives his consent to it. 5. On the other hand, the learned counsel for the respondent hotly contested the prayer made on behalf of the appellant and it was submitted that the time fixed by the consent of parties to do certain thing within the time so fixed cannot be extended by the Court unless the other party also gives his consent to it. It was also submitted that facility was afforded to the appellant to file the requisite undertaking not only before the trial Court but also before this Court but no reasons have been cited why the undertaking could not be filed before this Court even after obtaining certified copy of the aforesaid order on 18.7.2012 and more particularly in view of the fact that the appellant was represented by counsel before this Court and the order was passed in his presence also. It was further submitted that when the requisite undertaking was not filed within the time so fixed, on the expiry of the same vested rights accrued in favour of the respondent and the same cannot be taken away merely on the asking of the appellant more particularly in view of the fact that he failed to take necessary steps to file the undertaking within the time fixed. It was also submitted that the appellant has not come before the Court with clean hands and, therefore, discretion cannot be exercised in his favour. It was further submitted that the appellant cannot escape from his liability merely blaming his counsel appearing in the trial Court by saying that he did not take necessary steps. It was also submitted that in absence of affidavit of counsel of the appellant, he cannot be believed that even after instruction being given the counsel did not take necessary steps. It was further submitted that after passing of the order dated 9.7.2012, the Court has become functus-officio and it has no jurisdiction to pass order on the application filed by the appellant. 6. In support of his submissions, learned counsel for the respondent relied upon Jaynal Haldar vs. Khorsed Sheikh reported in AIR 1982 Calcutta 118, P. Jesaya (Dead) by LRs. vs. Sub-Collector & Anr. reported in (2004) 13 SCC 431, Bhaurao Dagdu Paralkar vs. State of Maharashtra & Ors. reported in (2005) 7 SCC 605 and Pioneer engineering Co. vs. D.H. Machine Tools reported in AIR 1986 Delhi 165(1). 7. vs. Sub-Collector & Anr. reported in (2004) 13 SCC 431, Bhaurao Dagdu Paralkar vs. State of Maharashtra & Ors. reported in (2005) 7 SCC 605 and Pioneer engineering Co. vs. D.H. Machine Tools reported in AIR 1986 Delhi 165(1). 7. I have considered the submissions made on behalf of the respective parties and the material mad available on record as well as relevant legal provisions and the case law including that relied by learned counsel for the respondent. 8. In the present case, two questions have arisen for consideration of this Court, First, in a case in which time was fixed to do certain thing by a party with the consent of both the parties whether Court has jurisdiction to enlarge/ extend the same under Section 148 CPC or its inherent powers under Section 151 CPC. Second, if yes, whether sufficient reasons have been shown by the appellant to extend the period so fixed. 9. In the case of Jaynal Haldar vs. Khorsed Sheikh (supra), it was held by Hon'ble Single Bench of Calcutta High Court that in a case in which the decree is passed on consent of the parties, without consent of the other party the Court could not extend the time on the application filed by one party as the Court has no power or jurisdiction to change, very or alter the terms of the consent decree. 10. In the case of Pioneer Engineering Co. vs. D.H. Machine Tools (supra),Hon'ble Single Bench of Delhi High Court held that Section 148 CPC applies only where the time is fixed for doing of an act prescribed or allowed by the CPC including the Rules. By invoking Section 148, Court cannot extend the time fixed for the performance of an obligation under the compromise decree. In that case the Court found that although time was granted by the Court under the decree but it was not an act prescribed or allowed by any provision of the Code of Civil Procedure or Rules made thereunder, Section 148 was not applicable and the Court had no jurisdiction to extend time fixed for performance of an obligation under the compromise decree. 11. In the case of Smt. Periyakkal & Ors. 11. In the case of Smt. Periyakkal & Ors. vs. Smt. Dakshyani reported in AIR 1983 SC 428 , Hon'ble Supreme Court held that the Court has power to extend time even in a case in which the time was fixed by consent decree. According to Hon'ble Court once the parties entered into compromise and invited the Court to make an order in terms of the compromise, which the Court did, the time for deposit stipulated by the parties became the time allowed by the Court and this gave the Court the jurisdiction to extend time in appropriate cases. It was also held that the time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True, the Court would not rewrite a contract between the parties but the Court would relieve against a forfeiture clause; and where the contract of the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would surely not stand curtailed. 12. In the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India reported in AIR 2005 SC 3353 , it was held by Hon'ble Supreme Court that although by the amendment made in Section 148 CPC restriction has been imposed not to extend time beyond 30 days but the same cannot take away the inherent powers of the Court under Section 151 CPC to enlarge the time beyond 30 days and to pass orders as may be necessary for the ends of justice or to prevent abuse of process of Court. It was held that extension beyond maximum of 30 days, thus, can be permitted if the could not be performed for the reasons beyond the control of the party. 13. In the case of D.V. Paul vs. Manish Lalwani reported in AIR 2010 SC 3356 , it was held by Hon'ble Supreme Court that the power to fix the time for doing some act must carry with it, the power extend such period depending whether the party in default makes out a case to the satisfaction of the Court who has fixed the time. There is nothing in Section 148 CPC or in any other provisions of the Code to suggest that such a power of extension of time cannot be exercised in a proper case. There is nothing in Section 148 CPC or in any other provisions of the Code to suggest that such a power of extension of time cannot be exercised in a proper case. The Court rejected the contention to the effect that the power to extend time cannot be exercised where the act in question is stipulated in a conditional decree. 14. In the case of Smt. Mangala Ghosh vs. Rabindra Nath Hazra reported in AIR 1987 Calcutta 307, Hon'ble Single Bench of Calcutta High Court held that the Court has ample power to grant extension even without consent of other party. 15. From the perusal of aforesaid decisions the legal position as emerging out may be stated as below:- (i) Even in a case in which the time was fixed with the consent of the parties for performing some obligation on the part of a party, the Court is not powerless to extend the time so fixed as the time fixed/stipulated by the parties becomes the time allowed by the Court. (ii) Even after amendment being made in Section 148 CPC, the maximum limit of 30 days for extension of time is not final and the Court has inherent power to further extend the same. (iii) In such a case ordinarily the time cannot be extended merely on the asking of a party and the Court can extend the same in rare cases to prevent manifest justice if sufficient cause is shown to the satisfaction of the Court. 16. If considered in the light of the aforesaid legal position and the overall facts of the present case, I am of the view that no case has been made out by the appellant so as to extend the time fixed vide aforesaid order dated 9.7.2012. As already stated, the order was passed by the Court with the consent of both the parties on the terms and conditions arrived between them and the appellant undertook to furnish written undertaking incorporating the terms and conditions in the trial Court or before this Court within a period of 15 days from the date of the order. As already stated, the order was passed by the Court with the consent of both the parties on the terms and conditions arrived between them and the appellant undertook to furnish written undertaking incorporating the terms and conditions in the trial Court or before this Court within a period of 15 days from the date of the order. In the light of this term, the appellant was obliged to furnish the undertaking within the time so fixed and on failure to do so, a valuable right immediately accrued to the respondent to execute the decree passed in his favour even before the date fixed by the parties for vacation of the suit premises. I am in agreement with the contention of the learned counsel for the respondent that once a valuable right accrued to the respondent, the same cannot be taken away unless the appellant is able to satisfy the Court that due to certain reason which was beyond his control, he could not file the requisite undertaking within the stipulated time. In the present case, the reason shown by the appellant is that the certified copy was obtained on 18.7.2012 and the same was handed over to the counsel conducting the case in the trial Court to take necessary steps in that regard and also requested him to call the appellant to sign papers as and when it would be necessary but he was called by the counsel to sign the papers on 5.9.2012. It is pertinent to note that in the application as well as in the supporting affidavit it has not been mentioned when the certified copy was handed over to the counsel and instructions were given to him to take necessary steps for furnishing the requisite undertaking within the stipulated time. I am of the opinion that in absence of the same it cannot be presumed that the same was done before expiry of period of 15 days from the date of the order. Further, the name of the counsel of the appellant conducting the case before the trial Court has also not been disclosed. If the appellant himself instructed the counsel after the expiry of the 15 days to take necessary steps, he cannot blame the counsel for not taking necessary steps within the stipulated time. Further, the name of the counsel of the appellant conducting the case before the trial Court has also not been disclosed. If the appellant himself instructed the counsel after the expiry of the 15 days to take necessary steps, he cannot blame the counsel for not taking necessary steps within the stipulated time. No doubt, a party must not suffer for the inaction or fault on the part of his counsel but there must be necessary material available on record indicating that it is due to counsel's fault or inaction that the necessary steps could not be taken but in the present case sufficient materials is not available on record to that effect. The Court cannot exercise its discretion in favour of a party who is negligent to pursue his case. The appellant has not explained that when eight days were already spent in obtaining the certified copy of the aforesaid order and only seven days remained to file the requisite undertaking before the Court and he was not called upon by his counsel to sign the undertaking even after expiry of the aforesaid period of 15 days, why he failed to contact the counsel immediately thereafter and waited till 5.9.2012, the date on which an application was filed by the respondent alongwith the copy of the order dated 9.7.2012 before the trial Court. All these facts are clear indication of the fact that the appellant was never serious to comply the consent decree dated 9.7.2012 and he was anyhow intending to further prolong the litigation even after the respondent agreed to grant of time till 31.12.2013 for vacation of the suit premises. I am of the consideration view that the discretion of the Court cannot be exercised in favour of the appellant. The present case is of exercised in favour of the appellant. The present case is of rare category and the reason shown by the appellant can not be said to be beyond his control. The appellant should blame himself for his negligence, carelessness and inaction and not anyone else. 17. Consequently, the application for extension of time being meritless is, hereby, dismissed.