Parmeshwarilal Ganeriwala vs Rekols and Co.

Ray, J.—The important question raised in both the applications is whether the Court has power to extend time in these two matters.

In the case of the Structural Waterproofing Co. Pr. Ltd. there was an order passed on December 17, 1963. The order was as follows:

Upon the Defendant furnishing security to the satisfaction of the Registrar for Rs. 8,750 by 10th January, 1964, cross order for discovery by 18th January, 1964, inspection forthwith thereafter and the suit will appear on the top of the prospective list on 27ith January, 1964. Liberty to apply. In default of security being furnished in terms of this order, there will be a final judgment in terms of prayers (a) and (b). In case of security being furnished cost will be in the cause. Registrar to act on signed copy of the minutes.

It will appear that time to furnish security was till January 10, 1964. The summons was taken out on January 30, 1964.

In the other case of Parmeshwarilal Ganeriwala, which is a suit instituted under Order 37 of the Code, an order was made on December 19, 1963, whereby the Defendant who was the Petitioner was given leave to defend the suit upon the condition of furnishing security for the sum of Rs. 6,000 to the satisfaction of the Registrar by January 31, 1964. Thereafter, the time to furnish security was extended till February 7, 1964. The present summons was taken out on February 4, 1964.

In both these applications counsel opposing the applications contended that the Court had no jurisdiction to extend the time. This question is of importance and I requested Mr. Meyer to appear as amicus curiae. I express my gratitude to Mr. Meyer for the assistance he has given. I should also state here that counsel appearing in both the applications gave assistance to me.

There have been divergent views about the power of the Court to extend time in such cases. In the recent decision of the Supreme Court in Mahanth Ram Das v. Ganga Das (1962) 1 S.C.A. 294 it has been held that the Court has jurisdiction to extend time. In Mahanth Ram Das''s case the order was as follows:

We giant the Plaintiff three month''s time to pay the court fee for the Trial Court and also for the High Court. The time will be computed from the date counsel for the Appellant is informed of the calculation by the Deputy Registrar of the High Court. If the amount is not paid within the time given, the appeal will stand dismissed. If the court fee is paid within the time given, the appeal will be allowed with costs and the suit brought by the Plaintiff will stand decreed with costs and the Plaintiff will be granted decree declaring....

In Mahanth Ram Das''s case time was to expire on July 8, 1954, but the Appellant was not able to find the money. The Appellant''s Advocate mentioned before the Vacation Judge on July 8, 1954, so that a request for extension of time could be made. No Division Bench was sitting on that date, and the Appellant filed an application on July 8, 1954. By a Bench decision the application dated July 8, 1954, was dismissed on the ground that the appeal had already stood dismissed as the amount was not paid within the time given. Thereafter, an application u/s 151 was moved and that application was also rejected. A third application u/s 151 read with Order 47, Rule 1 of the Code was filed. The application for review was heard on September 27, 1955, and that application was also dismissed. Dealing with these applications the Supreme Court said:

We are of opinion that in this case Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers when the two petitions u/s 151 of the CPC were filed. If the High Court had felt disposed to take action on any of those occasions, Sections 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come.

The Supreme Court decision has now settled this question and the Court has jurisdiction to extend time.

Apart from jurisdiction u/s 148 the Court has inherent jurisdiction where orders have not been drawn up and perfected. Mr. Meyer relied on the decision In re Harrison''s Share under a Settlement In re Williams'' Will Trusts and In re Ronner''s Settlement Trusts (1955) 1 Ch. 260. In those cases applications were made for approval by the Court of schemes affecting family trusts. On March 15 and 17, 1955, a Judge in Chambers applying decisions of the Court of Appeal, pronounced orders approving the schemes. On March 25, 1954, the House of Lords gave its decision in Chapman v. Chapman (1954) A.C. 429 which made it clear that the Judge had no jurisdiction to make the orders. At that date none of the orders in question had been entered and the Judge directed the Registrar concerned not to proceed further with them as he desired to hear further argument. The matter was adjourned into Court, and all parties to the applications contended that the Judge had no power to or, alternatively, ought not to recall order which he had pronounced. The Judge varied orders originally pronounced. On appeal, it was held that an order pronounced by a Judge, whether in open Court or in Chambers, can always be withdrawn, altered or modified by him either on his own initiative or on the application of a party until such time as the order had been drawn up, passed and entered. It is further held in that case that when a Judge has pronounced judgment he retains control over the case until the order giving effect to his judgment is formally completed. It is obvious that such control must be used in accordance with the discretion exercised judicially and not capriciously.

Before the order is drawn up, if parties by consent extend the time, such extension by consent, if the order is not already drawn up, is incorporated in the earlier order and the order may be drawn up to that effect. It is obvious that if the Court had no jurisdiction to pass such an order, extension of time by consent would not confer jurisdiction. In view of the Supreme Court decision it is not necessary to dwell on this point further.

Another question arose as to whether in a suit under Order 37 of the Code an extension of time would have the effect of giving leave to defend at a time beyond the prescribed period of limitation. Reliance was placed on the decision in Pulin Krishna Roy v. Susil Kumar Dey (1948).53 C.W.N. 192 (194) and on the observations to the effect that in a suit under Order 37 an application for leave to defend must be made within ten days from the date of service of summons, and the granting of the application would mean in effect an extension of time for making an application for leave to defend beyond the statutory limit of ten days and that the Court has no power to do so Mr. Meyer contended that, in view of the Supreme Court decision, the decision in Pulin Krishna Roy''s case is no longer good law either on logic or on principle. Secondly, Mr. Meyer contended that the test was whether the suit'' was alive or dead, and he rightly contended that the suit was alive for a decree would have to be made and the suit would have to be heard before the decree could be passed. Thirdly, Mr. Meyer contended that leave to defend had already been granted and limitation had already been stopped and the limitation could not run again after the order had been made. He emphasized that the present application was not for leave to defend but for extension of time to furnish security or to deposit money as the order contemplated. The true character of orders for extension of time for payment is indicated by the Supreme Court in Mahanth Ram Das''s case (Supra) that the order though passed after the expiry of the time fixed by the original judgment would have operated from the date fixed by the previous order. This observation of the Supreme Court, in my view, answers the controversy raised in Pulin Krishna Roy''s case (1948) 53 C.W.N.192 and now set at rest by the decision of the Supreme Court. I am, therefore, of opinion that the Court has jurisdiction to extend time in all suits.

In the facts and circumstances of both the cases, I am of opinion that both parties are entitled to orders as asked for I, therefore, make an order in the Structural Waterproofing Co. Pr. Ltd.''s case in terms of prayer (a) and in Parmeshwarilal Ganeriwala''s case in terms of prayer (b). In Parmeshwarilal''s case an order is also asked for that immovable properties within the Calcutta Corporation be offered.'' I am of opinion that in the facts and circumstances of the case the Applicant is entitled to an order in terms of prayer (a). In both applications the Respondents are entitled to be paid costs. Certified for counsel in both the cases. Registrar to act on the signed copy of the minutes.

Direction for early hearing given in the previous orders will be modified in view of the order now made by calculating the time of affidavit of documents, inspection and time for placing the suits in prospective list or daily list as the ease may be.