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2015 DIGILAW 3461 (ALL)

Shiv Narain Sharma v. Union of India Thru' Indian Railway

2015-11-03

VIVEK KUMAR BIRLA

body2015
JUDGMENT Vivek Kumar Birla,J. Heard learned counsel for the revisionists at length and have perused the record. 2. The revisionists have come up challenging the impugned order dated 9.10.2015 passed by the Additional District Judge, Agra in Misc. Case No. 44 of 2015 whereby their application no. 4C praying for extension of time to deposit the cost imposed by the court below vide order dated 28.4.2012 has been rejected. 3. The relevant facts of the present case for the purpose of deciding the controversy are that 12 plaintiffs have filed the original suit no. 829 of 92 (Shiv Narain Sharma and others and others vs. Union of India and others). The aforesaid suit was dismissed in default on 11.8.2010 for want of prosecution and the application under Order IX Rule 9 CPC for restoring on its original number was filed praying for setting aside the order dated 11.8.2010 dismissing the suit for non-prosecution, which was ultimately allowed on 28.4.2012 on payment of cost of Rs. 10,000/-. In the aforesaid order, it was clearly observed that the plaintiffs are indulging in causing delay in disposal of the suit, however, in the interest of justice the application was allowed on payment of cost of Rs. 10,000/- with the conditions that they will not seek any unnecessary adjournment in future. 4. Subsequently, an application for modifying the order dated 28.4.2012 was filed by the plaintiffs, which was rejected on 16.7.2012. The cost of Rs. 10,000/- admittedly was not deposited by the plaintiffs. Subsequently 24.8.2012 and 7.9.2012 were fixed but still the cost was not deposited by the plaintiffs. On 5.10.2012 plaintiffs moved an application that they want to deposit the cost but the plaintiffs have gone out of city for the business purpose, therefore, they may be granted ten days' further time to deposit the same. The said application was rejected vide order dated 5.10.2012 on the ground that the Court cannot extend the time in the light of Section 148 CPC. It was also noticed that five months have lapsed but the cost has not been deposited by the plaintiffs. The aforesaid order dated 5.10.2012 was not challenged by the plaintiffs before the higher forum, however, again an application dated 8.1.2013 under Section 151 CPC was filed seeking modification of the earlier order dated 5.10.2012. It was also noticed that five months have lapsed but the cost has not been deposited by the plaintiffs. The aforesaid order dated 5.10.2012 was not challenged by the plaintiffs before the higher forum, however, again an application dated 8.1.2013 under Section 151 CPC was filed seeking modification of the earlier order dated 5.10.2012. There was a delay of about two months in filing the aforesaid application, which has been explained that strike of lawyers was going on in the District Court from 26.11.2012 to 20.12.2012. The said application was registered as Misc. Case No. 45 of 2015 as the records of original suit were not available. Now, again by the impugned order dated 9.10.2015 application 4C filed by the plaintiffs seeking modification of the order dated 5.10.2012 was rejected. 5. A perusal of the impugned order indicates that the original suit is pending since the year 1992 and the evidence of the plaintiffs was concluded in the year 2000 and thereafter the suit was dismissed for non-prosecution on 11.8.2010. Again the application for restoration was decided on 28.4.2012 imposing cost of Rs. 10,000/-. At this stage, it is relevant to mention that there are 12 plaintiffs in the case and all are businessmen as indicated in the array of parties itself. In such view of the matter, there was no justification of seeking modification of the order regarding deposit of cost of Rs. 10,000/-, however, after the order seeking modification of the order dated 28.4.2012 regarding cost was rejected on 16.7.2012, there is no explanation whatsoever that why the cost of Rs. 10,000/- has not been deposited by the plaintiffs on the next dates i.e. 24.8.2012 and 7.9.2012. The application was moved on 5.10.2012 again seeking extension of time for deposit of cost. 6. Admittedly, the plaintiffs have never made any effort to approach the higher court challenging the earlier order by which the cost was imposed or the order to modify the earlier order, which was rejected on 16.7.2012. The plaintiffs kept on filing applications before the court below itself apparently to delay the proceedings. Further the last application was filed on 8.1.2013 but Misc. Case was registered only in the year 2015, only to the benefit of the plaintiffs on the pretext that original file was not available. 7. The plaintiffs kept on filing applications before the court below itself apparently to delay the proceedings. Further the last application was filed on 8.1.2013 but Misc. Case was registered only in the year 2015, only to the benefit of the plaintiffs on the pretext that original file was not available. 7. I am conscious of the fact that in the case of Salem Advocate Bar Association, T.N. vs. Union of Inidia and others, (2005) 6 SCC 344 , in paragraph 43 it has been held as under: "43. There can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice. Section 148 , therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the court would have inherent power to extend time beyond 30 days." 8. Thus, clearly there is no bar that the time can not be extended beyond 30 days. It is the discretion of the Court. But the fact remains that the application is being filed with bona fide intention and sufficient cause exists or events beyond the control of a party. 9. The appellants are businessmen and they are 12 in numbers and there is nothing on record to indicate that there exists any sufficient cause or the events were beyond control of the parties. 10. In such view of the matter, I am of the view that although the court below was not justified in rejecting the application on the ground that the Court has no power to extend the time under Section 148 CPC, however this Court is of the view that the attempts made by the plaintiffs by moving applications before the court below time and again and by not depositing the cost on subsequent dates were not bona fide. 11. In such view of the matter, I am not inclined to interfere in the impugned order dated 9.10.2015 passed by the Additional District Judge, Agra. 12. The present revision is accordingly dismissed.