Lachhman Singh and Another vs Smt. Bohli and Others

S.S. Sodhi, J.—The controversy here lies within a narrow compass.

A civil suit was filed by the plaintiff Smt. Bholi against Om Parkash which was dismissed by the Sub Judge 1st Class, Kurukshetra, by his judgment of August 23, 1982. On Appeal, a decree was passed on the basis of a '' compromise between the parties on September 18, 1985, in terms of which a sum of Rs. 7,000/- was to be paid to the plaintiff on or before October 30, 1985 and the balance amount of Rs. 3,000/- on or before May 30, 1986. On the payment of this amount, the case of the plaintiff was to be deemed to have been dismissed but on the failure of the defendants to make these payments, the suit of the plaintiff would be decreed.

In pursuance of the said order of the Additional District Judge, Kurukshetra, a sum of Rs. 7,000/- was admittedly paid by the defendants to the plaintiff before the due date but the balance amount of Rs. 3,000/- was not paid before May 30, 1986. An application was filed on June 6, 1986 i.e. just seven days after the due date, for permission to deposit the said sum of Rs. 3,000/-, after condoning the delay in paying it. The refusal of the trial Court to grant extension and to allow this deposit is what is now challenged in revision.

The reason put forth by the petitioner for the delay in the payment of the 2nd and last instalment of Rs. 3,000/- was that they had gone to the Golden Temple Amritsar on May 22, 1986 to take part in the Kar Seva there. While they were there, Curfew was imposed in Amritsar, as a result of which they could not return to Kurukshetra till June 6, 1986. The trial Court did not, however, accept this explanation on the ground that the defendants had not placed on record a copy of any order issued by the District Magistrate, Amritsar, regarding Curfew during these days and what is more, out of 15 defendants, only two had gone to Amritsar. The others could have deposited this amount. Counsel for the plaintiff, on his part, sought to lay a stress upon the fact that the respondents were Brahmins by caste and they were, thus, not expected to go to Golden Temple for Kar Seva. This was, however, not accepted by the trial Court with the observations that Hindus too had faith and went to Gurdwaras for worship.

The question that arises for consideration is whether the Court is empowered to extend time for: the deposit of the instalment, in the circumstances of this case. In Parmeshri Vs. Naurata, the question was raised that if a conditional decree for possession on payment of certain amount in instalments within a specified period is passed in favour of a party and such party fails to pay the amount within that time, but for sufficient cause, was the Court competent to extend time u/s 148 of the Code of Civil Procedure? Relying upon the judgment of the Supreme Court in Mahanth Ram Das Vs. Ganga Das, , it was held that the Court is not entitled to extend time for payment under this provision of law.

A some what different view has, however, since been expressed by the Supreme Court in Ganesh Prasad Sah Kesari and Another Vs. Lakshmi Narayan Gupta, , where it was observed:-

"Where the Court fixes a time to do a thing, the Court always retains the power to extend the time for doing so. Section 148 of the CPC provides that where any period is fixed or granted by the Court for the doing of 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 have expired. The principle of this section must govern in not shuttling down the discretion conferred on the Court."

This view was quoted with approval in the later judgment of the Supreme Court in John Singh v. Sukh Pal Singh 1989 P.L.J. 723 where the earlier judgment in Mahanth Ram Dass''s (supra) was also noticed.

It must follow, therefore, that the Court does indeed, have power u/s 148 of the CPC to extend time for payment of instalment, as in the present case. Such a power, of course, has to be exercised keeping in view the facts and circumstances of the case particularly whether or not the delay in making the payment before the due date was justified and there is sufficient cause for condoning such delay.

Turning to the present case, it would be seen that the major part of the money payable by the defendants to the plaintiff had already been paid. The delay in this case was only of a week and the reason and explanation put forth for it by the defendants was quite plausible. It may be mentioned here that during the hearing, the petitioner had offered to pay to the respondent a sum of Rs. 30,000/- instead of Rs. 3,000/- payable in respect of the second instalment. This offer was, however, declined by the respondents.

Be that as it may, interests of justice, in the circumstances, clearly render it incumbent to condone the delay on the part of the defendants in depositing the second and last instalment of Rs. 3,000/-. This delay is, consequently, hereby condoned and as a result, the suit of the plaintiff shall be deemed to stand dismissed if the defendants deposit the amount, if not already paid, within 15 days.

This revision is accepted in these terms. In the circumstances, however, there will be no order as to costs.