Mst. Ramko vs Devia and Others

J.N. Wazir, C.J.—The facts of this case giving rise to the application under Sections 148 and 151, Code of Civil Procedure, may be briefly

mentioned here. The Plaintiff applied for amendment of her plaint before the trial court of Sub-Judge Bhaderwah. The trial Court refused to amend

the plaint. The Plaintiff came up in revision to this Court and on 7-4-1958 the revision application was allowed and the order of the trial Court was

set aside and it was directed that the amendment be allowed on payment of Rs. 20/- as costs to the Defendant and it was further ordered that the

costs be deposited in Court within two months from 7-4-1958 failing which the revision application would stand dismissed.

It appears that the parties appeared before the trial court on 20-4-1958 and the Plaintiff asked for some more time for filing the amended plaint.

The trial Court extended the time till 19-5-1958. On that date Mst. Ramko Plaintiff submitted to the Court that her counsel was not present and

prayed for further extension of time. The trial Court allowed the Plaintiff to file the amended plaint by 23-6-1958. On that date the presiding officer

was on leave and the office fixed another date for hearing of the case viz. 25-7-1958.

On that date the Plaintiff filed the amended plaint but an objection was raised by the Defendant that the costs not having been paid the application

for amendment of the plaint be dismissed. The trial Court allowed the objection of the Defendant and dismissed the application of the Plaintiff for

amendment of the plaint. The Plaintiff has filed an application under Sections 148 and 151, Code of Civil Procedure, for further extension of time

and for setting aside the order of the trial Court dated 25-7-1958.

It is contended on behalf of the Petitioner that the trial Court having extended the time for filing the amendment plaint has erred in dismissing the

application for amendment of the plaint. It is further contended that it was within the discretion of the trial Court to extend time u/s 148 for the

payment of costs and for amendment of the plaint. In support of this view reliance is placed on Bodh Raj v. Imam Din AIR 1932 Lah 235, in

which it was held as under:

The rejection of the plaint in the circumstances mentioned above was wholly wrong. Courts and the rules of procedure regulating their conduct

were intended for the broad purpose of facilitating justice and not for impeding it. There was no valid reason for impeaching the order of 15-2-

1926, which was complied with by the Plaintiffs. If there was any technical defect, it could be rectified by the Court u/s 148 of the Code which

empowered the Court to enlarge the period even though the period originally fixed might have expired. This was certainly a fit case for the exercise

of the discretion conferred by that section.

In the above case also the time was fixed by the High Court for payment of court-fee but the Sub-judge extended the time and his successor

rejected the plaint on the ground that the court-fee was not paid in time.

In the present case the trial Court had extended time for filing the amended plaint in presence of the parties. The Defendant Respondent could

have taken objection to the extension of time by the trial Court and also could have asked the Plaintiff to pay the costs awarded by the High-Court

before extension of time could be granted in her favour. This was not done. The Defendant allowed the extension of time to be granted to the

Plaintiff and after the period for payment of costs had expired an objection was raised by the Defendant that the amendment of the plaint could not

be allowed.

It was due to an unfortunate error committed by the Officer of the Court that time was extended for filing the amended plaint without calling upon

the Plaintiff to deposit the costs in time. If she had been asked to deposit the costs on the date when she asked for extension of time for filing the

amended plaint she would have complied with the order and deposited the costs. But the fact that the Court enlarged the time for filing the

amended plaint gave this impression to the Plaintiff that she could pay the costs on the date when she had to file the amended plaint. In these

circumstances it is a fit case in which u/s 151 CPC this Court should extend time for payment of costs to the Defendant.

In Sreepathi Balaiah alias Bala Gurumurthy and Another Vs. Darsi Ramayya and Another, it was held that when a Court has granted time within

which a payment must be made and has declared that in default of payment within the time specified the proceedings will stand dismissed, there is

no power u/s 148 after the date on which those proceedings would stand dismissed, to extend the time in which the payment was to be made. But

the Court has inherent power to prevent a party from being damnified by the error of the Court's own officer and though there is no power u/s 148

to reopen a closed matter and give an extension of time, the Court has power u/s 151 to do that which is necessary for the ends of Justice in order

to set right the consequences of an unfortunate error committed by an officer of Court.

In the present case, as pointed out above, if the Sub Judge Bhadarwah had not extended time for filing the amended plaint without payment of

costs, the Plaintiff would not have made any default in payment of costs.

The learned Counsel for the Respondent has cited Sheikh Hari Vs. Sm. Diljan Bibi and Others, . This case supports the contention raised on

behalf of the Petitioner and is not helpful to the Respondent. In this case the Plaintiffs failed to carry out the direction within the time prescribed and

applied to the successor of the Judge for extension of time to carry out the directions. Extension of time was granted on two occasions without

notice to the Defendant.

It was contended that order extending time was without jurisdiction and it was held that the successor in office of the Judge who made the decree

had jurisdiction to enlarge time for payment of sufficient court fee and orders made in this behalf would not be challenged on the ground that they

were without jurisdiction.

In the circumstances of the present case, as mentioned above, it is a fit case in which extension of time should be granted to the Petitioner for

depositing the costs awarded by this Court. I, therefore, allow this application, vacate the order of the trial court dated 25th July, 1958 and extend

the time for depositing the costs by two months from today's date. The costs shall be deposited by the Plaintiff in the trial court on or before the

18th February, 1959 failing which the application for amendment of the plaint shall stand dismissed.

In view of the fact that the Plaintiff has been careless in not depositing the costs in time before the trial court and the Defendant has been

unnecessarily dragged to this Court again, the Plaintiff Petitioner shall pay Rs. 10/- as costs of this application to the Defendant Respondents.