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2018 DIGILAW 491 (KER)

Sakkeer Hussain v. Sainabha

2018-06-26

R.NARAYANA PISHARADI, V.CHITAMBARESH

body2018
JUDGMENT : There is no higher principle for the guidance of the Court than the one that no act of Court should harm a litigant. It is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: "Actus curiae neminem gravabit" (See Jang Singh v. Brij Lal, AIR 1966 SC 1631 ). 2. The appellant is the respondent in O.P.195 of 2016 on the file of the Family Court, Malappuram filed by his wife and their child for return of gold ornaments to the wife and also for realisation of money towards maintenance. The appellant was set ex parte in O.P.No.195 of 2016 and an order was passed therein on 30.05.2017 directing him to return nine sovereigns of gold ornaments to the wife or to pay her Rs.1,89,000/- as the value of the gold ornaments. The appellant was also directed to pay maintenance at the rate of Rs.5000/- per month to the wife and at the rate of Rs.3500/- per month to the child for the past 15 months with interest @6% per anum. 3. On 18.11.2017, the appellant filed application as I.A.No.1616 of 2017 for setting aside the ex parte order passed against him and I.A.No.1617 of 2017 for condoning the delay in filing the application I.A.No.1616 of 2017. As per the common order dated 05.04.2018, the Family Court, Malappuram allowed both applications on the condition that the appellant shall pay 20% of the amount claimed in E.P.No.31 of 2017 which was filed for realisation of the amount awarded in O.P.195 of 2016, within 15 days. The operative portion of the order of the Family Court reads as follows: “Petitions are allowed on condition that the petitioner shall pay 20% in E.P.31 of 2017 in O.P.195 of 2016 to the respondent within 15 days from today. It is made clear that if the above condition is not fulfilled within the stipulated time, the petitions will stand automatically dismissed. For payment to 18.04.2018.” (emphasis supplied). 4. On 18.04.2018, the Family Court dismissed the aforesaid applications. The operative portion of the order of the Family Court reads as follows: “Petitioner present. No payment. Hence petition dismissed”. 5. It is made clear that if the above condition is not fulfilled within the stipulated time, the petitions will stand automatically dismissed. For payment to 18.04.2018.” (emphasis supplied). 4. On 18.04.2018, the Family Court dismissed the aforesaid applications. The operative portion of the order of the Family Court reads as follows: “Petitioner present. No payment. Hence petition dismissed”. 5. This appeal is filed challenging the aforesaid order dated 18.04.2018 passed by the Family Court. 6. Learned counsel for the appellant would submit that oral application was made by the petitioner on 18.04.2018 before the Family Court to grant extension of time for payment of the amount but it was not allowed by the Court. On a query made to the learned counsel, we are informed that the appellant is employed abroad. 7. On hearing the learned counsel for the appellant, we had initially an impression that the appeal is only a part of the tactics adopted by the appellant to prolong the execution of the ex parte order passed against him by the Court. However, on a closer scrutiny of the records, we are of the view that the order dated 18.04.2018 passed by the Family Court is not legally sustainable and it is liable to be set aside. 8. The reason is simple. As per the common order dated 05.04.2018, the Family Court directed that the appellant shall pay 20% of the amount claimed in E.P.No.31 of 2017 within 15 days. The period of 15 days would have expired only on 19.04.2018. But, on 18.04.2018, before the expiry of the period 15 days granted by it, the Court dismissed the applications I.A.No.1616 and I.A.No.1617 of 2017 for the reason that the appellant did not make any payment. When the court had granted 15 days time within the date 05.04.2018 to comply with its direction regarding payment, it should not have dismissed the applications on 18.04.2018, before the expiry of that period. 9. True, the order dated 05.04.2018 passed by the family court is a “self working'' or “self operating” order. Even in case of such orders, the party concerned has got right to seek extension of the time granted by the court. 10. Section 148 of the Code of Civil Procedure, 1908 provides for enlargement of the time by the court. It reads as under: “148. Enlargement of time. Even in case of such orders, the party concerned has got right to seek extension of the time granted by the court. 10. Section 148 of the Code of Civil Procedure, 1908 provides for enlargement of the time by the court. It reads as under: “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”. 11. A plain reading of the above provision would show that when any period or time is granted by the court for doing any act, the court has the discretion from time to time to enlarge such period even if the time originally fixed or granted by the court has expired (See Nashik Municipal Corporation v. M/s R.M. Bhandari, AIR 2016 SC 1090 ). Section 148 of the Code empowers the Court to extend the time fixed by it even after the expiry of the period originally fixed. The use of the word 'may' shows that the power is discretionary, and the Court is, therefore, entitled to take into account the conduct of the party praying for such extension (See Johri Singh v. Sukh Pal Singh, AIR 1989 SC 2073 ). 12. In Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882 , the Supreme Court has observed as follows: “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 cannot 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 has been passed. 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 has 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.” 13. In Gobardhan Singh v. Barsati, AIR 1972 All 246 , the Allahabad High Court has succinctly stated the law in this regard as follows: "Even in cases where an order is made by the Court for doing a thing within a particular time and the order further provides that the application, suit or appeal shall stand dismissed if the thing is not done within the time fixed, the Court has jurisdiction, if sufficient cause is made out, to extend the time even when the application for extension of time is made after the expiry of the time fixed. It is not the application for grant of further time, whether made before or after the expiry of the time granted, which confers jurisdiction on the Court. The Court possesses the jurisdiction under Section 148 CPC to enlarge the time and the application merely invokes that jurisdiction." The aforesaid view has been approved by the Supreme Court in Johri Singh v. Sukh Pal Singh, AIR 1989 SC 2073 . 14. It is a well accepted principle statutorily recognized in Section 148 of C.P.C that where a period is fixed or granted by the court for doing any act prescribed or allowed by the Code, the Court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may expire. If a Court in exercise of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the court can also extend the time initially fixed by it. If a Court in exercise of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the court can also extend the time initially fixed by it. Passing a composite order would be acting in disregard of the jurisdiction in that while granting time simultaneously the court denies to itself the jurisdiction to extend time. The principle of equity is that when some circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the Court retains to itself the jurisdiction to re-examine the alteration or modification of circumstances which may necessitate extension of time. If the Court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys. The danger inherent in passing conditional orders becomes self evident because that by itself may result in taking away jurisdiction conferred on the court for just decision of the case. The true purport of conditional order is that such orders merely create something like a guarantee or sanction for obedience of the court's order but would not take away the Court's jurisdiction to act according to the mandate of the statute or on relevant equitable considerations, if the statute does not deny such consideration (See Chinnamarkathian alias Muthu Gounder v. Ayyavoo alias Periana Gounder, AIR 1982 SC 137 ). The power to fix the time for doing of an act carries with it the power to extend such period, depending upon whether the party in default makes out a case to the satisfaction of the Court. There is nothing in Section 148 C.P.C or in any other provisions of the Code to suggest that such a power of extension of time cannot be exercised (See Paul v. Manisha Lalwani, AIR 2010 SC 3356 ). 15. In the instant case, the lower court dismissed the applications I.A. No. 1616 and I.A. No. 1617 of 2017 before the expiry of the period of 15 days granted by it to comply with its direction. 15. In the instant case, the lower court dismissed the applications I.A. No. 1616 and I.A. No. 1617 of 2017 before the expiry of the period of 15 days granted by it to comply with its direction. When the lower courts pass such “self operating” or conditional orders, they shall be careful to see that the next posting date of the case, for verifying whether the parties have complied with the directions, shall be a date after the expiry of the period granted for such compliance. 16. The appellant has not challenged the order of the lower court to pay 20% of the amount claimed in E.P. No. 31 of 2017 as a condition for setting aside the ex parte order passed against him in O.P. 195 of 2016. The dismissal of the applications I.A. No. 1616 and I.A. No. 1617 of 2017 by the lower court, before the expiry of the period of 15 days granted by it for payment of money, was really a mistake or error committed by it. In these circumstances, we are inclined to grant the appellant time till 09.07.2018 to comply with the direction made by the lower court in the order dated 05.04.2018 in the applications I.A. No. 1616 and I.A.No.1617 of 2017. 17. Consequently, we allow the appeal and set aside the impugned order dated 18.04.2018 passed by the Family Court, Malappuram. We grant the appellant time till 09.07.2018 to comply with the direction for payment of money made by the lower court in the order dated 05.04.2018 in the applications I.A.No.1616 and I.A.No.1617 of 2017. The direction shall be complied with by depositing the amount in the lower court on or before the date 09.07.2018. The lower court shall take the case on 10.07.2018 for verification of the deposit of money, if any, made by the appellant. If the amount is deposited by the appellant within the stipulated time, the lower court shall restore the case O.P.195 of 2016 to file and proceed to dispose of it in accordance with law, after giving notice to the petitioners therein. In case the appellant deposits the amount, the lower court is at liberty to release it to the petitioners in O.P.195 of 2016. The appeal is disposed of as above.