Muniammal vs Sakkubai and Another

The question which has been argued vehemently by the parties in this revision petition is, whether there is jurisdiction in the Civil Court to extend

the time for payment of costs where a conditional order is made by the Court allowing a petition on payment of costs with a direction that

otherwise the petition will stand dismissed. We are really not concerned with the merits, of the application which was made by the petitioner-

defendant for setting aside an ex parte decree.

The Wit in question is a suit for possession filed on 17-8-1982. An ex parte decree was passed against the petitioner on 15-12-1983,Two of

the defendants, being defendants Nos. 2 and 3 filed an application to set aside the ex parte decree passed on 167-1985. That application came to

be dismissed for default on 3-12-1985- The defendants, therefore, filed I A. 1183 of 1986 to set aside the dismissal of the application for setting

aside the ex parte decree on 20-12-1985. This application remained pending. Ultimately, on 23-1-1987, an order came to be made on this

application allowing it on payment of costs on or before 2-2-1987, with a direction that ,otherwise the petition will stand dismissed. The further

order is call on 13-2-1987. Now admittedly no costs were paid on or before 22-1987, as directed by the court by the order dated 23-1-1987.

When the application was called out on 3-2-1987 order passed by the learned Judge was payment of costs call on 23-2-1987, On 23-2-1987,

the order was made payment of costs call on 12-3-1987. A similar over was made upon 2-3-1987, requiring the application to be called on 2-4-

1987. In the meantime on 18-3-1987 the petitioner and the other defendants filed I A-5455 of 1987 for stay. On this application, an order came

to be made granting stay till 2-4-1987 on condition that the costs ordered be deposited by 19-3-1.987. The decree holder was given notice to

appear on 241987. It is not in dispute that on 17-3-1987 another application came to be made being IA 5454 of 1987 for extension of time and

costs came to be deposited on 17-3-1987. Now the prayer in IA 5454 of 1987 was that time for payment of costs should be extended. The

application purported to be one under S. 151 C.P.C. and S. 148 of the Code. This application came to be disposed of on 15-5-1987. The

learned VIII Assistant Judge, City Civil Court, Madras held that the defendants had not complied with the conditional order. In as much as they

had not paid costs on or before 2.2-1987. He took the view that the petition for extension of time for payment of costs having been filed after the

period for payment of costs had expired, the court had become functus officio, and the application was, therefore, dismissed. The learned Judge

also expressed the view that It is different matter if the application for extension of time had been filed before 2-3-1987, the deadline. It is not the

caw. It is this order which is challenged ,by the second defendant, who in the plaint has alleged to be a tenant of the plaintiff.

The learned counsel appearing on behalf of the second defendant has contended that, having regard to the order made from time to time by the

learned Judge and especially the order dated 15-3-1987, by which the learned Judge further directed the costs to be deposited in court on 19-3-

1987, he was in error in rejecting the application No, 5454 of 1987. The argument is that the series of orders commencing from 3-2-1987

indicated that time was extended from time to time for payment of cost and, since costs have been deposited on 17-3-1987, that is, even before

the court made the order on 18-3-1987, on IA 545 of 1987, the court could not have rejected the application I.A. 5454 of 1987 on the ground

that it was made prior to 2-2-1987.

The learned counsel appearing on behalf of the plaintiff vehemently contended that all orders made after 2-2-1987, which according to the

learned counsel for the defendant No. 2, have the effect otter tending the time for making the payment of costs of Rs. 25, must be considered as

being without jurisdiction, because the court having made the conditional order on 23-1-1987, specifically directing that the petition will stand

dismissed, if payment is not made oil or before 2-2-1987, the court was functus officio and could not have therefore extended the time for

payment of the costs of Rs. 25. It is also argued that, in any case, defendant No. 2 should have made an application before the time for payment of

costs had expired and the application having been made after 2-2-1987, the order rejecting the said application should not be interfered with. The

learned counsel for the plaintiff wanted to canvass the merits of the application for setting aside the ex parte decree. That however is not the

subject matter of this revision petition, because the revision petition is restricted to the correctness of the order dated 15-5-1987 in I.A. 5454, of

1987 apart from the fact that the court had already passed a conditional order allowing it.

Now it is well established that under S. 148 C.P.C. the court has power to extend the period which is fixed by it for doing any act prescribed or

allowed by the Civil Procedure Code, though the period originally fixed or granted may have expired. As a matter of fact, S. 148 itself specifies

that, even though the period originally fixed or granted may have the court may in its discretion, from time to time, enlarge such period, which is

fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. The argument of the learned counsel for the plaintiff,

however, is that the court must be treated as having become functus officio, having regard to the nature of the conditional order which was made

by the Court on 23-1 -1987. Now it is also well settled that, where a Court is functus officio and does not have season of the suit or a proceeding,

then it cannot invoke the provisions of S. 148 of the Civil Procedure Code. In other words, before the power under S. 148 is exercised by a Civil

Court on the date on which the application is made and the date on which the order is made, the court must have seisin and control over the matter

in which the order is to be made.

This position appears to be settled now beyond controversy. A reference may usefully be made to the decision of a Full Bench of the Madhya

Pradesh High Court in Budhulal Kasturchand Vs. Chhotelal and Others, in which the court, while dealing with the scope, of S. 148 C.P.C. had put

the proposition thus -

So long as the court does not record a formal order disposing of the suit or proceedings, it continues to have the jurisdiction to extend. the time

granted to a party for performing an act, notwithstanding it'' having already expired (the only exception being a conditional decree) (see para 23)"".

In dealing with the effect of a conditional order the Full Bench observed in paragraph 10 as follows -

In our opinion, the language of S. 148 C.P.C. is wide enough to vest the Court with undoubted jurisdiction to enlarge the time from time to time,

and this jurisdiction extends even to a case where the period fixed had

already expired Even if in the initial order the court may have said that if costs are not paid before a certain date fixed for it, the suit shall stand

dismissed, the court does not lose seisin of the case after the expiry of such'' period notwithstanding a default. Such directions are in terrorism so

that-dilatory litigants put them selves in order. The court does not cease to have jurisdiction on the happening of the default. There are no such

words in S. 148 to confine it to cases in which extension is sought before the period fixed by the court expire The court does not tease to have

jurisdiction until it makes an order finalbrzdisp6sing of, the proceeding before it"".

The Full Bench further pointed out that in a given case, it was for the Court to, exe , rise J the discretion which was vested in it one way or the

other ,but rejecting an application in exercise of the discretion is one thing and it is quit another to say that the court ceases to 4vejurisdiction over

the matter just bemuse the period originally fixed has expired

A similar view had been taken by a ''Fun Bench of the Allahabad High Court in Gobardhan Singh Vs. Barsati, of the judgment it is observed as

follows:-

Even in cases where an order is made by 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 that

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 ma& before or after the expiry of the time granted which confers Jurisdiction on the court. the court possesses the jurisdiction under S.

148 C.P.C. to enlarge the time and the application merely invokes that jurisdiction "".

We may also usefully refer to the decision of the Supreme Court in Mahanth Ram Das Vs. Ganga Das, , where, with reference . to procedural

orders except in conditional decrees, the Supreme Court pointed out the procedural orders though peremptory 1conditional decrees apart) are, in

essence, in terrorism, so that dilatory litigants might put themselves in order and avoid delay and they do not however completely stop a court from

taking note of events and circumstances which happen within the time fixed In para 5 of the judgment the Supreme Court pointed out that S. 148

of the Code in terms. &Vows extension of time oven if the original period fixed has expired and Sec. 149 is'' equally liberal. It was then observed

as follows -

How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with cats that might arise in between

it is not necessary to decide in this appeal. Then order turn out, often enough to be inexpedient, Such procedural orders, though peremptory

(conditional decrees apart) are, in essence, in terrorism, so that dilatory litigants might put themselves In order and avoid delay. They do not,

however, completely stop 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 Modes 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, had been passed. We need cite only one such case, and that is Lachmi Narain Marwari v. Balmukund

Marwari, 4 Pat 6l: 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.

In Ponnaiya v. Muthayya. 1981 TLNJ 332, Ratnavel Pandian, J. has referred to the decision of the Full Bench of the Allahabad High- Court cited

Narendra Bahadur Singh Vs. Chief Inspector of Stamps, U.P., and has taken the view that, if sufficient cause is shown to extend the time, even

when the application for extension of time is made after the expiry of the time originally fixed. The court has got ample power under S. 148 C.P.C.

to enlarge the time and it cannot be said that the court has lost soisin over the matter merely because the final order has been passed.

As already pointed out the learned counsel for the plaintiff has vehemently contended that the court had lost seisin of application I.A. 1183 of

1986 and that the court was not required to-do anything further after 2-2-1987 which was the date fixed for payment. It is not possible to accept

this argument. It is obvious that when the court directed application I.A. 1183 of 1986 to be called on 3-2-1987 that was obviously done in order

to enable the court to make a order on that application. The order dated 23-1-1987, But it was actually kept pending for orders on 3-2-1987,and

thereafter adjourned from time to time and, it the words payment of costs have to be given any meaning. The meaning was the adjournment was

for verification of the fact of payment. They could a be construing its permitting payment of costs to be made by the next date of hearing to which

the hearing of the application was, adjourned . The application was, therefore pending all the time after 2-2-1987. The Court, therefore had clearly

socisin of the proceeding initiated by application. I.A.1183 of 1987 until a final order, was made on that application. As a matter of fact, the

application has been regarded as pending even by the court, and the court has specifically directed on 18-3-1987 that costs should be deposited

by 19-3-1987. It is, therefore, difficult to see how the court can now the take the view that the time for deposit of costs could not be extended.

The order dated 18-31-1987 by which costs were ordered to be deposited on 19-3-1987 is not challenged by the plaintiff. That order, right or

wrong, has become final between the parties, and, as a matter of fact having regard to the order dated 18-3-1987, the only order which could be-

properly made on application I.A. 5454 of 1987 was a formal order of allowing that application as costs have been deposited within the time

granted afresh as a condition of the order of stay. It is also not possible to accept the contention of the learned counsel appearing on behalf of the

plaintiff that all the orders passed after 2-2-1987 are without jurisdiction. This contention has been advanced by the learned counsel on the basis of

certain authorities which unfortunately do not seem to deal with a matter like the one involved in this revision petition.

In P.K. Sukumaran Vs. Sulaiman Khan, on which reliance is placed on behalf of the respondent, Ramanujam ,J, was dealing with an application

purported to be made under S. 148 C.P.C, or S,149 of the code for extension of time to pay a certain amount in a conditional decree. In that

case, the suit had been disposed of after trail and the plaintiff was time for payment, the suit was directed to be dismissed. The learned Judge held

that the time fixed under the conditional decree cannot be extended by the court after the default clause had operated and that the remedy for the

petitioner there in can only be way of review or appeal. According to the learned Judge, the court had passed a final order in the suit And the court

does not retain control over the suit any further and, therefore, neither S. 148 nor S. 149 C.P.C. could be invoked. There can hardly be any

quarrel with the proposition laid down by the learned Judge. The suit had been finally disposed of in that case. In the instant case, we are dealing

with an application which was still kept pending till 15-5-1987. Ramanujam,j decision cannot be of any assistance to the case of the plaintiff.

In Venugopalv. The Triplicate Urban Co-operative Society Ltd. by its secretary, (1960) 2 Mad 136, a Division, Bench of this court has held

that, where a court passes an order under Order9. Rule 8 C.P.C. directing the restoration of a suit dismissed for default on condition of payment

of costs to the opposite party before specified date and provides that in default of such payment the application will stand. dismissed, the court no

longer remains seized of -the application but he comes functus officio. A reading of the judgment which is very short shows that in that case it was

not disputed before the Division Bench that when the default occurred by not making the deposit, the consequence was that the petition itself stood

dismissed after the expiry of the period fixed for deposit. This is clear from the following observations -

It is not denied before us that default was made in this deposit and that, in consequence the petition itself stood dismissed after the expiry of the

period fixed for the deposit

These observations would, therefore, indicate that it was not disputed before the Division Bench that the consequence of non-deposit was that the

petition stood dismissed. That is how the Division Bench took the view that the court had become functus officio. In the instant case, as I have

pointed out, the application is stiff -kept pending and there is no, questi6if of the court become functions officio.

In D. Sitaraman and Others Vs. S.S. Pattabhiraman alias Rathnam, Balakrishna Ayyar,j, applied the principle and , with respect ,correctly, that

where the proceedings cease to exist. eon sequent-upon.

a default clause provided in the order itself,S.148 C.P.C . can have no application . The learned judge in that -one-pointed out that the petitioner

may file either a fresh application for stay or a petition for a review of the orders .The whole decision thus turns on the question whether, as a result

of the conditional order , the application was disposed of or not. Reference was made to a decision of the Division Bench in S.S. Balakrishna

Aiyar and Another Vs. Parvathammal and Another, . In that case, pending an appeal in the High Court against the decree in a suit for

administration of the estate of a deceased person stay of proceeding was ordered on the condition of the petitioners there in furnished security for

Rs.44000 with in three months with a further direction that otherwise the petition to stand dismissed with costs. This order was made on 3-9-

1926. On 3-12-1926 the petitioner put in an appli6ation for extension of time for furnishing secretariats but this was diatheses on 17-12-1926 on

the ground-that the lower court had found the security to be insufficient and therefore the order of 3-9-1926 had become effective and the proper

remedy of the petitioner was to apply for a review of that order or to apply to review the lower court''s finding that the security was insufficient. An

appeal was filed against this order and the appeal was dismissed on the ground that the order dated 17-1.2-1926 was not a Judgment within the

meaning of Cl. 15 of the. Letters Patent, and consequently, no appeal lay against that order. Obiter observations were made that the court had no

power to extend the time in such a case and the proper remedy was to apply to review that order or to revise the lower course order, that the

security was insufficient. It is, however, important to point out that, on. the facts of that case, the Division Bench held that S. 148 C.P.C. could not

be invoked at all because there was no previous order which was operative. At page 501, the Division Bench observed as follows -

''The positions is , in fact, precisely the same as though the order had never been: passed, and the power to extend time given-by S. 148 C.P.C

cannot be invoked, because not only had the period originally fixed or Smite expire A but there is no previous order still current upon which an

order extending time could operate

This observation would indicate that the Division Bench took the views on the peculiar facts of that case that the security furnished was insufficient

and there was no order in respect of which an order of extension of time could be made.

The last decision relied upon on behalf of the plaintiff is in Must, dagri v. Kera Kachari, AIR 1976 Gau 16, The learned Chief Justice of the

Gauhati High Court on the facts of that case has held that the conditional order setting aside the ex parte decree on payment of costs which also

provided that, if the costs are not deposited by the fixed date. The application would stand dismissed, Was self-operative and that no further order

dismissing the application was necessary and therefore, Extension of time to pay costs under S. 151 C.P.C. WAS ILLEGAL. In paragraph 13 of

the judgement, the learned Judge after referring to the terms of the decree observed as follows:-

If the order is couched in such words, then no further order regarding the dismissal, of the case for not complying with the mandatory direction of

the court regarding the payment of costs need be passed.

Having taken the above view, the learned Chief Justice proceeded to point out. that, though in that case the time was granted to pay costs by 20-

12-1967, an order was also passed on 21-12-1967, dismissing. the application for restoring the suit and therefore the court was not in seisin of the

suit.,

The authorities thus indicate that the question as to whether the exercise of jurisdiction under S. 148 C.P.C. is proper or not will depend on

whether at the time when I the application was made, the Court was or was not functus officio and whether it had seisin of the case.

As already pointed out in the instant case, I.A. 1183 of 1986 was not dismissed and was still kept pending ancl, therefore, there was clearly

jurisdiction in the court to extend the time on being satisfied that defendant No. 2 had made out a case for extension of

I5. Consequently, the order rejecting the application I.A. 5454 of 1987 and the consequent order rejecting the application I.A. 1183 of 1986 will,

therefore, have to be set aside.

The revision petition is accordingly allowed. Since costs have been paid as directed by the conditional order on I.A. 1183 of 1986, that

application must stand allowed. The result is that the original application for setting aside the ex parte decree, namely, 1. A. 12642 of 1985 will

stand restored to file. The same is directed to be disposed of according to law, expeditiously. There will be no order as to costs.

Revision allowed.