Krishan Dutt vs Mohinder Nath

Jaswant Singh, J.—Two petitions for review of our judgment dated March 6, 1973, disposing of civil first appeals Nos. 11 and 13 of 1972

were filed by the petitioner on April 24, 1973. On the matter coming up before us on July 10. 1973. after service of notice to the other side, it was

brought to our notice that the petitions were not in proper form as neither of them was accompanied by a certified copy of the judgment sought to

be reviewed or by a certified copy of the decree prepared on the basis thereof. Mr. S.P. Gupta, learned Counsel for the petitioner, thereupon,

submitted that compliance with the provisions of Order 47 Rule 3 read with Order 41 Rule 1 of the CPC was not necessary as there was no

decree in favour of any party to the case. He, however, asked for time till July 30, 1973. to support his contention by reference to some decided

cases. While making the request for adjournment the learned Counsel assured the court that he would have a certified copy each of the judgment

and decree ready before the next date so that he did not have to ask for further adjournment in case his contention did not prevail. He also agreed

to argue the point relating to the sufficiency or otherwise of the court-fees paid on the memorandums of the petitions on the next date.

The case was accordingly directed to be put on July 30. 1973. when a preliminary objection was raised by Mr. J.N. Bhan to the effect that the

learned Counsel for the petitioner could not be heard in support of the review petitions as the certificate required to be appended by him to the

petitions under Rule IX of Chapter V of the Rules of the Court was not there. Mr. S.P. Gupta, thereupon submitted that the requisite certificate

had inadvertently not been appended by him and that he should be given time to rectify the defect. To prevent the ends of justice being defeated

we allowed to the learned Counsel a week's time to rectify the defect on payment of Rs. 25/- as costs to the other side. On the defect relating to

the want of the certificate being rectified and the matter being placed before us for further proceeding we passed a conditional order on December

1973, directing the petitioner to deposit the court fees leviable under Art. 5 of Schedule I of the Court Fees Act and to file a copy each of the

judgment and decree within two weeks failing which the memorandum of petitions would stand rejected without further reference to the Bench.

Although the petitioner deposited the balance of the court fees amounting to Rs. 262.50 within the time allowed to him he failed to file a copy

each of the judgment and decree within the time allowed to him vide our order dated December 28. 1973. On the matter being again placed

before us on March 25, 1974. we passed the following order in each of the aforesaid two petitions:

The petitioner not having complied with the directions as contained in our order dated December 28, 1973, the petition already stands rejected.

Let it, therefore be consigned to records.

On April 8, 1974. the petitioner filed the present application praying that the aforesaid order dated March 25, 1974, be recalled in view of the

fact that the court did not while passing the order take into consideration the fact that he was entitled to the exclusion of time spent by him from

January 1, 1974, when he applied for the copies to January 19, 1974. when the copies were ready for delivery. The application also states that the

court possesses inherent powers to condone the delay, if any, u/s 148 of the Code of Civil Procedure,

This application came up before us rather late on April 16, 1974, when after hearing it in part we adjourned it to the next day when a

supplementary affidavit was filed before us by the petitioner stating inter alia that he obtained the certified copy of the judgment from the Copying

Department on January 24. 1974, but could not deliver the same to his counsel on the same day as on going to his house ha found his wife

seriously ill and became so busy in her treatment that he could not find time till January 30, 1974, when he produced the copy in court. In para 4 of

the affidavit, it is stated as under:

Therefore, this period of twenty days, wit from January 1, 1974, when he applied for the copies to January 19, 1974, when the copies were

ready, should have been excluded, but it appears that at the time of passing the final order on 25-3-1974, this fact was not brought to the notice of

the Hon'ble Court. Besides this, the court also possesses the inherent powers and powers u/s 148, CPC to condone the delay, if any.

We have heard the learned Counsel for the petitioner at great length but find ourselves unable to accede to his contention for the following

reasons:

In the first place no application for extension of time having been made before the expiry of the time allowed by us on December 28. 1973, the

order became final on January 11 1974.

Secondly, it is now firmly established that the power to extend time can be exercised in case of an interlocutory order made in a pending

proceeding where the court retains control over the case (See Surajmal Marwari and Another Vs. Bhubaneshwar Prasad and Others, and AIR

1965 Cal 308).

In Kanhu Charan Behera and Another Vs. Jagabandhu Behera and Others, . it was held that if the order is a final order and the proceeding has

come to a close, the court is functus officio.

In Periasami Asari and Another Vs. President, Iluppur Panchayat Board, Iluppur and Others, , cited by the learned Counsel for the petitioner

himself the Madras High Court while making a distinction between cases in which the court ceases to be seized of the matter and becomes functus

officio in the event of non-compliance with a conditional order and those in which it still retains control over the main proceeding despite default in

fulfilling the conditions imposed by the court has held that Section 148. CPC cannot be applied where the matter is finally disposed of.

In the instant case, the proceedings in which the order dated December 28, 1973. was passed having ended, we have lost seisin over the case

and have no jurisdiction to extend the time.

Thirdly even on March 25, 1974, when the above quoted order was passed by us no such prayer as contained in the present application was

made.

The decision of the Supreme Court reported in Mahanth Ram Das Vs. Ganga Das, cited before us by the learned Counsel for the petitioner is

clearly distinguishable. In that case, the application under Sec. 148 of the CPC for extension of time for payment of the deficit court-fee was made

before the expiry of time originally fixed by the court but the same had not been considered at all. In that case also it was held by their Lordships

that Sections 148 and 149 could be invoked when the time originally fixed by the Court had not actually expired.

Even on merits, we do not find any sufficient cause for enlarging the time. As already stated not only did the petitioner not file the certified

copies of the decree and the judgment on which it was founded, with the petitions because of which they could not be deemed to have been validly

presented, but he did not do so, even on December 28. 1973. as undertaken by him on July 10, 1973, or within the further time allowed to him on

December 28, 1973.

Again the petitioner did not make a prayer for extension of time either before the expiry of the period fixed vide order dated December 28,

1973. or even on March 25. 1974, when the above quoted order was passed.

Then again although the copies were ready on January 19, 1973 as admitted by the petitioner in para 3 of the present application, he did not

take delivery of them till January 24, 1974. nor did he file them on that date or immediately thereafter. On the other hand, he filed the copy of the

judgment on January 30. 1974. There is also no explanation given by the petitioner for his inaction or negligence in not filing the copy of the decree

before February 7, 1974, although it was according to his own showing ready on January 19. 1974. and he got the delivery of it on January 24.

1974.

For the foregoing reasons, we dismiss the application.

Wasi-Ud-Din, J.

I agree.