Surajmal Marwari and Another vs Bhubaneshwar Prasad and Others

Fazl Ali, J.—This appeal arises out of a suit brought by the respondents against the appellants and certain other defendants in the Court of the Munsif of Banka for a declaration of their title to and recovery of possession of certain lands. On 21st December 1936, the Munsif decreed the suit in the following terms:

Considering the evidence on record, I decide that the plaintiffs are entitled to a declaration of their title as sudhbharnadars over the land and they are entitled to recover possession as such over the same. The suit accordingly is decreed on contest against the contesting defendants with costs including pleader''s fee at five per cent....The plaintiffs must file the deficit court-fee within a fortnight from today otherwise they will not be entitled to have the aforesaid decree and the suit will he dismissed.

The deficit court-fee was deposited by the plaintiffs on 5th January 1937 along with a petition in which they asked the Munsif to amend the plaint by inserting therein the name of their father which had been omitted by mistake. The Munsif thereupon passed the following order: "Amend and draw up decree." On 8th January 1937 the appellants, who were defendants first party in that suit, filed a petition before the Munsif stating that the deficit court-fee had been filed a day too late and the suit must accordingly be dismissed.

The learned Munsif however after hearing the parties rejected the petition and held that as the court-fee had been deposited before any final order dismissing the suit was passed, the order accepting the court-fee and directing the preparation of the decree must stand. The decision of the Munsif was questioned by the appellants in appeal before the Additional Subordinate Judge of Bhagalpur, but the learned Subordinate Judge affirmed it and dismissed the appeal. The appellants have accordingly preferred this second appeal and the only ground urged on their behalf is that the Munsif having pronounced his judgment in the suit on 21st December 1936 had no jurisdiction to accept the court-fee after the expiry of the time fixed in the judgment.

Learned Counsel for the appellants cited a number of cases to support his contention that where a party is required to do something under a decree and a time limit is prescribed for doing it, the Court which passed the decree has no jurisdiction to extend the time limit. That is undoubtedly the general rule, but it is subject to the qualification that where the decree or order which fixes the time is not intended to be final and the Court still retains control over the proceeding, the Court may extend time u/s 148, Civil P.C. As was pointed in S.A. Balkrishna Ayyar v. Parvathammal AIR (1928) Mad 154, by Curgenven J., the test to determine whether power still exists in the Court to extend time is whether the proceeding in which time was originally granted is still pending or has been disposed of. The same view was expressed by Kekewich J. in Collinson v. Jeffery (1896) 1 Ch D 644 in these words:

I think I ought to relieve the applicant if I can Mr. Lemon says I cannot, because the action is dead. If that is the right view, the matter is beyond my power. It appears to me however that this action is not dead...but a final stroke is required to effect death. That final stroke has not been delivered, and therefore, in my opinion, the application is properly made and the order asked for may be granted.

The learned Judge after making the above observations added:

There is another form of order available and appropriate where the Court thinks that severe terms should be imposed, namely that on failure to do certain acts within a specified time, then "the action do stand dismissed without further order." In this case no such Words are in the order.

Thus a distinction is to be drawn between a case where the proceeding has terminated and one in which it has not terminated and the Court still retains control over it. Whether the Court still retains control over the proceeding or not must be determined upon the nature of the proceeding and the order passed therein. If that order is a final order, the Court is functus officio and it cannot enlarge time, In such cases if any relief is necessary, it can be granted only upon review by that Court or on appeal by a Court to which an appeal lies from that Court. To quote Curgenven J. once more the power to extend time given by Section 148, Civil P.C., cannot be invoked (in such cases) because not only has the period originally fixed or granted expired, but there is no previous order still current upon which an order extending time could operate.

If, on the other hand, the decree or order is not final, then Section 148, Civil P.C., does apply and the Court may enlarge time in a proper case. Now, when we examine the order passed by the Munsif in the present case on 21st December 1936, we find that it did not state that in the case of failure on the part of the plaintiff to pay the deficit court-fee within a fortnight, the suit was to be dismissed automatically. It merely stated that "the plaintiff will not be entitled to a decree and the suit will be dismissed." That the Munsif still retained control over the proceeding is clear from the fact that he had stayed the preparation of the decree in the meantime.

It was only after the court-fee had been deposited on 5th January 1937 that he ordered the decree to be drawn up. In my opinion therefore on the peculiar facts of this case it must be held that a final order had yet to be passed in the suit on the date when the Munsif accepted the court-fee and that he had jurisdiction to accept it. As the only point which was raised in this appeal fails, I would uphold the judgment and decree of the Courts below and dismiss this appeal with costs.

Harries, C.J.

I agree.