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Vithalbhai T. Patel Vs. Shyamlal Durgadas Khanna - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 454 of 1967
Judge
Reported inAIR1970Bom101; (1969)71BOMLR372; 1969MhLJ732
ActsCode of Civil Procedure (CPC), 1908 - Sections 148 - Order 37, Rules 3(4) and 4; Bombay City Civil Court Rules, 1948 - Rule 123; Limitation Act - Sections 5
AppellantVithalbhai T. Patel
RespondentShyamlal Durgadas Khanna
Appellant AdvocateJ.M. Patel and ;B.S. Purohit, Advs.
Respondent AdvocateM.G. Mani, Adv.
Excerpt:
.....by defendant in complying with directions as to deposit of amount fixed by order granting leave to defend--defendant applying for extension of time to make such deposit--whether court entitled to entertain application.;the true effect of sub-rule (4) of rule 3 of order xxxvii of the civil procedure code, 1908 and rule 123 of the rules of the bombay city civil court, 1948, is that the default made by a defendant in compliance with the directions given in an order granting leave to defend does not operate to finally dispose of the suit. the court would be entitled, therefore, to entertain applications for extension of time in connection with such directions until a final ex parte decree is passed in favour of the plaintiff.;pulin krishna v. susil kumar (1948) 53 c.w.n. 192, referred to. -..........the balance of rs. 2,416.70 within four weeks thereafter. the deposit order was conditional order granting leave to the defendant to defend the suit2. in pursuance of the above order dated august 5, 1966, the defendant duly deposited in trial court the sum of rs. 3,308.30 on august 12, 1966. he failed to deposit the sum of rs. 2.000/- on or before october 9, 1966. by the chamber summons dated october 17. 1966, he applied for extension of time to enable him to make the deposit of the second instalment. the trial court thereupon extended the time to make deposit till november i, 1966.3. mr. patel for the plaintiff contends that the order extending time is invalid, because the court had no jurisdiction to make that order and the application for extension of time was in effect a second.....
Judgment:

1. This is a revisional application on behalf of the original plaintiff from the order dated October 28, 1966, made on the Chamber summons dated October 17, 1966, whereby the City Civil Court directed that the time to deposit the balance amount of Rs. 2,000/-pursuant to the order dated August 5, 1966 be extended till November 1, 1966. The above order dated August 5, 1966 was made on the summons for judgment taken out by the plaintiff. By that order the defendant was directed to deposit the sum of Rs. 7,725/- by three instalments respectively of Rs. 3,308.30 within one week fon or before August 12. 1966), Rs. 2,000/- within eight weeks (on or before October 9, 1966) and the balance of Rs. 2,416.70 within four weeks thereafter. The deposit order was conditional order granting leave to the defendant to defend the suit

2. In pursuance of the above order dated August 5, 1966, the defendant duly deposited in trial Court the sum of Rs. 3,308.30 on August 12, 1966. He failed to deposit the sum of Rs. 2.000/- on or before October 9, 1966. By the chamber summons dated October 17. 1966, he applied for extension of time to enable him to make the deposit of the second instalment. The trial Court thereupon extended the time to make deposit till November I, 1966.

3. Mr. Patel for the plaintiff contends that the order extending time is invalid, because the Court had no jurisdiction to make that order and the application for extension of time was in effect a second application for leave to defend. That second application is not contemplated by any of the revisions of the Code of Civil Procedure and was in fact beyond time and, therefore, liable to be dismissed.

4. In support of his first contention Mr. Patel has relied upon Sub-rule (4) of Rule 3 of Order 37 as amended by this Court and also on Rule 123 of the City Civil Court Rules and Section 148 of the Code of Civil Procedure. In his submission the true effect of Sub-rule (4) read with Rule 123 is that upon default being made by a defendant in complying with and carrying out the conditions fixed by the order granting him leave to defend, the plaintiff becomes entitled to judgment forthwith. The default made by a defendant in complying with such conditions automatically entitles the plaintiff to a decree for the amount mentioned in the summons for judgment. In the result, the Court becomes functus officio and is left With no powers to extend time fixed for compliance with such conditions. In those circumstances, the Court cannot have any power under Section 148 of the Code to extend time fixed for compliance with conditions. In the result, the Court can have no jurisdiction to extend time in connection with compliance of conditions fixed by an order granting leave to defend.

5. The relevant part of Sub-rule (4) runs as follows:

' xxxxx if the defendant be permitted to defend xxxxx the Judge shall direct that on failure to complete the security (if any), or to carry out such other directions as the Court or the Judge may have given within the time limited in order, the plaintiff shall be entitled to judgment forthwith'.

6. The relevant part of Rule 123 of the City Civil Court Rules provides:

'If the defendant does not complete Ms security (if any) or carry out such other directions as the Judge may have given within the time limited in the order, the plaintiff shall be at liberty to apply to put the suit down for hearing forthwith x x x x x, as if no such order' (granting leave to defend) 'had been made'.

7. Now, therefore, it is quite clear that in connection with a default made by a defendant in complying with the directions fixed by the order granting him leave to defend, under Sub-rule (4), the provision is that the Judge shall by the very order direct that on failure to carry out such directions the plaintiff shall be entitled to judgment forthwith. The provision in Rule 123 is that the plaintiff should be at liberty to apply to put the suit down for hearing forthwith as if the order granting leave to defend had not been made. These provisions have operated so that in a case where a defendant defaults in complying with the directions given by order granting him leave to defend the plaintiff becomes entitled to and applies for and after getting the suit placed for hearing obtains ex parte decree. The question is whether the failure of a defendant to comply with directions contained in the order granting leave to defend automatically so operates that the Court ceases to have seisin of the suit and becomes functus omcio. In Mr. Patel's submission, the question is not of the Court ceasing to have seisin of the suit but the Court ceasing to have seisin of (i) the application of the defendant for leave to defend as also (ii) the summons for judgment in his submission, the failure of the defendant to comply with the directions contained in the order granting leave to defend so operates that the Court ceases to have seisin of these matters and the Court becomes functus officio and disentitled to consider the question of leave to defend on application in that connection any further. Now, it appears to me that the true effect and construction of the above provisions in the Sub-rule (4) and Rule 123 is that upon default made by defendant in complying with the conditions imposed by the order granting conditional leave the plaintiff in the suit becomes entitled to apply to the Court that an ex parte decree may be passed in his favour. The Court thus continues to have seisin of the suit and does not become functus officio or cease to have jurisdiction in the matter of the plaintiffs suit. In this connection, it is important to notice that the Rule 4 of Order 37 of the Code of Civil Procedure provides that:--

'After (ex parte) decree the court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit. If it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.'

It is important to notice that the summons in the summary suit informs the defendant that in default of his filing appearance and obtaining leave to defend, an ex parte decree will be passed against him. In spite of that position, under R. 4, the Court is empowered to set aside ex parte decrees passed in cases in which the defendant falls to appear and/or appears but fails to obtain leave to defend in the first instance. It is difficult to accept Mr. Patel's submission that because the summons for judgment was completely disposed of and the question of leave to defend had been once considered, the trial Court ceased to have jurisdiction altogether and could not deal with the question of extension of time fixed by the order granting leave to defend. Now, it is true that under Section 148 of the Code provision is made entitling Courts to enlarge time where any period is fixed or granted by the Court for the doing of any act prescribed by the Code even though the period originally fixed or granted may have expired. In spite of that restricted provision in Section 148, it has now been well established that in cases in which power to extend time is not given under Section 148 Court has jurisdiction to extend time in matters not finally disposed of. Where a matter is not finally disposed of by it Court retains control over it and is seized of the same and it accordingly has power to make any just or necessary order including the appropriate cases an order for extension of time previously fixed. As the failure of the defendant to comply with the directions given by the order dated August 5, 1966, did not automatically operate so as to finally dispose of the plaintiff's suit the trial Court had jurisdiction to deal with the application for extension of time. In other words, as the non-compliance with the conditions imposed by the order dated August 5, 1966, did not operate automatically to give an ex parte decree to the plaintiff in the matter of the suit, the trial Court was not functus officio and had jurisdiction to deal with the summons that the defendant took out for extension of time.

8. In connection with his second contention, Mr. Patel relied upon the decision of a single Judge of the Calcutta High Court in Pulin Krishna v. Susil Kumar, 53 Cal. W. N. 192. On an application for extension of time, in circumstances similar to those in this case, the Court held that failure of the defendant to comply with the conditions imposed on him had resulted automatically into the dismissal of the defendant's application for leave to defend. There was no provision entitling the defendant to make a second application for leave to defend beyond the period of limitation fixed in that connection.

The application for extension of time made by the defendant was second application for leave to defend, the Court had ceased to have seisin of the matter and had become functus officio. The second application was not maintainable and was beyond time. The Court accordingly dismissed the application. Now, it requires to be remembered that the procedure prescribed by the rules of the High Court at Calcutta made it incumbent upon defendants in summary suits to make their own separate applications for leave to defend. These were liable to be made within a period of 10 days from the date of the service of the summons in the suit on the defendants. To these applications, provisions in Section 5 of the Limitation Act were not made applicable. The applications for leave to defend were always treated as separate independent proceedings in Court. The rules of the City Civil Court do not require any defendant to make any independent application for leave to defend. The rules provide that the defendant must file his appearance within the time prescribed. This time is liable to be extended. The further provision is that in the event of a defendant in summary suit filing an appearance the plaintiff must get a summons for judgment issued. In this proceeding to be undertaken by plaintiff defendant may at any time within 10 days from the service of the summons for judgment by affidavit or otherwise disclose facts which may be deemed sufficient to entitle him to leave to defend. On those facts, at the hearing of the summons for judgment, he can apply to Court that he should be granted leave to defend. It is quite, clear, having regard to the rules of the City Civil Court, that defendant in a summary suit is not bound to take any independent proceedings for claiming leave to defend. Ordinarily leave to defend is granted in the proceedings by way of summons for judgment instituted by plaintiff. Having regard to the above different provisions in the rules of the City Civil Court, it is difficult to hold that the reasoning in the above Calcutta decision is applicable to the facts of this case. It is difficult to accept Mr. Patel's contention that the application for extension of time would amount to a second application for leave to defend. As already discussed above, the true effect of the Sub-rule (4) of R. 3 of Order 37 and Rule 123 of the City Civil Court Rules is that the default made by a defendant in compliance with the directions given in an order granting leave to defend does not operate to finally dispose of the suit in favour of the plaintiff. The Court would be entitled, therefore, to entertain applications for extensions of tune in connection with such directions until a final ex parte decree is passed in favour of the plaintiff. The Court being seized of the suit would always have jurisdiction to consider such applications. The Court will not be functus officio in the matter of the suit and accordingly in the matter of applications for extensions of time.

9. in the result, this revisional application fails. Rule discharged with costs.

10. Revision application dismissed.


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