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L.P. JaIn Vs. Nandakumar R. Taliwalla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1196 of 1960 (converted from A.O. No. 117 of 1958)
Judge
Reported inAIR1961Bom254; (1961)63BOMLR48; ILR1961Bom45
ActsCode of Civil Procedure (CPC), 1908 - Sections 115, 148 and 151 - Order 6, Rule 18 - Order 7, Rule 11 - Order 9, Rule 13
AppellantL.P. Jain
RespondentNandakumar R. Taliwalla
Appellant AdvocateS.H. Lulla and ;G.K. Kamat, Advs.
Respondent AdvocateH.M. Shah, Adv. i/b., Shah and Co.
Excerpt:
.....ill at it does not refer to any particular act which should be done by the defendant within the time allowed by the court, so that incase he fails to perform that art within the time so allowed or so fixed he can make an applicationto the court for extension of time for performing it and the court may grant it under section 148 of the code. if on the materials placed before it the court feels satisfied that there was sufficient ground preventing the defendant from appearing at the hearing of the suit, it is not as it it is bound to make an order setting aside the ex parte decree in absolute terms. 175 be paid to the plaintiff towards costs within the same period providing that in default of the deposit and payment by the defendant within the period fixed by him the notice of motion..........ill at it does not refer to any particular act which should be done by the defendant within the time allowed by the court, so that incase he fails to perform that art within the time so allowed or so fixed he can make an applicationto the court for extension of time for performing it and the court may grant it under section 148 of the code. the court has a discretion under this rule either to grant the application for setting aside the ex parte decree or to reject it. in either event, it has to apply its mind to the facts put before it in order to satisfy itself whether the summons was not duly served upon the defendant or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, as the case may be. if on the materials placed before it the.....
Judgment:

1. This appeal is filed by the defendant in a suit being suit No. 1588 of 1954 against the order passed by the learned City Civil Court Judge on the chamber summons which wss taken out by the defendant on 26th February 1958 dismissing it with costs.

2. In the suit which was filed by the plaintiff respondent against the defendant an ex parte decree was passed on 18th November 1957. The defendant thereafter took out a notice of motion for setting aside the ex parte decree on the ground that he was unable for sufficient reasons to attend the hearing of the case in the circumstances set out in the affidavit in support of thenotice of motion. That notice of motion was disposed of by the City Civil Court on 29th January 1958, and the order that was passed on the notice of motion by the learned Judge of that Court was that on the defendant depositing Rs. 1,500 within four weeks and on paying a sum of Rs. 100 being the costs thrown away on 18th November1957 and a sum of Rs. 75, being the costs of the notice of motion within four weeks to the plaintiff the ex parte decree be set aside and that it the said amount was not deposited and the said amounts were not paid the notice of ruction was to stand dismissed with costs. The order further stated that if the said amount was deposited and the amount of costs was paid to the plaintiff the suit was to he on some board on 10th March1958 peremptorily.

3. It appears that the defendant was not able to carry out the terms and conditions of that order within the period specified therein. On 26th February 1958, however, the defendant took out a chamber summons praying that the lime for making the deposit and for the payment of the costs be extended up to 15th April 1958. That chamber summons was heard by the same learned Judge who had heard the notice of motion on 13th March 1958 and was dismissed inasmuch as the learned Judge was of the view that in view of the terms of the order he had passed on the notice of motion he was functus officio and no longer seized of the matter as from 29th January 195S and that, therefore, he did not have jurisdiction to entertain any application for extension of time for the payment of the deposit and costs directed by bis order. It is against that order that the defendant has filed the present appeal.

4. The learned advocate for the respondent raised a preliminary objection to the effect that no appeal lay against the order passed on the chamber summons taken out by the defendant for extension of time. The learned advocate for the defendant did not contest the contention raised by the learned advocate for the respondent. The chamber summons was only intended for extension of time for making the deposit and payment of certain amounts which were directed by the order setting aside the ex parte decree and Mr. Lulla, the learned advocate for the defendant, was not able to show any provision of the Civil Procedure Code under which an appeal against such an order could lie. He, however, applied that the appeal might be treated as a revision application because, according to his submission, the point involved in the case was very important so far as his client was concerned and that, therefore, he must be allowed to make submissions on the footing that the appeal was a civil revision application. I accepted the submission and allowed the appeal to be treated as a revision applica-tion.

5. Now, the only point that was raised by Mr. Lulla on behalf of the defendant was that under Section 148 of the Code of Civil Procedure the learned Judge had ample jurisdiction to extend the time for making the deposit as well as the payment directed by the order setting aside the ex parte decree and that the learned Judge -wasaccordingly in error in his view that he had no such jurisdiction at all. The learned advocate for the plaintiff-respondent, on the other hand,, contended that Section 148 of the Code of Civil Procedure had no application to the facts of the present case at all and for this purpose he relied upon a passage in Sir Dinsliaw Mulla's Code of Civil Procedure in the commentary under Section 148 of the Code. That passage runs as follows :

'If the effect of the order is that in the event of non-compliance, it operates automatically and without further intervention of tlie Court, the section cannot be applied lor the obvious reason that the Court ceases lo be seized of the .matter and becomes functus officio'.

6. A number of cases have been cited by the learned author in support of this proposition. Apart from this proposition, however, I may turn to the wording of Section 148 itself and consider as to whether the present case would lull within the terms of that section. That section is as follows :

'Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its-cliscretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.'

It is apparent on the wording of the section itself that it can only apply where time is fixed for the doing of any act prescribed or allowed by the Code. In other words, whenever a Court fixes any period for the doing of any act in a suit or proceeding, the act in respect of which the time is fixed must be one prescribed or allowed by the Code, Now, the acts which are so prescribed or allowed by the Code arc sufficiently illustrated by a reference to the several provisions in the Code itself. For instance, one may turn to the provisions of Order 6, Rule 18. That Rule provides that

'if a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within lour-teen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court'.

By this Rule it is clear that the act which is prescribed is to amend the pleadings for which purpose discretion is given to the Court to fix a time. This is, therefore, an instance of an act prescribed or allowed by the Code for the purpose of which tho Court is entitled to fix a time and in case the act is not performed within the time so fixed an application can be made for the extension of time and the Court will have full jurisdiction under section 148 of the Code to grant such application, inspire of the fact that the period originally fixed had expired. Another instance is furnished by the provisions ot Order 7, Rule 11. That Rule provides the cases in which a plaint shall be rejected. Clause (b) of the Rule relates to under valuation of the relied claimed in the plaint and provides that if the plain-tie on being required by the Court to correct thevaluation within a time to be fixed by the Court,fails to do so, then the plaint shall be rejected.Here again, it will be noticed that the Rule prescribes an act or allows an act on the part of the plaintiff which act has to be performed within the time fixed by the Court, the act being to correct the valuation in respect of the relief claimed in the plaint. Where the correction is not made within the time fixed by the Court the plaintiffcan make an application for extension of time and the Court will be perfectly justified and will have full jurisdiction to entertain the application andextend the time for the purpose of enabling theplaintiff to correct the valuation, even thoughsuch an application was made after the period originally fixed had expired. Clause (c) of Rule 11 of Order 7 supplies yet another instance of an act which is prescribed or allowed by the Court in respect of which the discretion is given to the Court to fix the time for its performance. That clause provides that 'where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, tails to do so, the plaint shall be rejected.' Here the act which is prescribed or allowed by the Code to be done by the plaintiff is to supply the requisite stamp-paper and the Court is given power to fix a time for that purpose. In this case, too, the plaintiff can make an application for extension of time if he has not complied with the requirement within the time already fixed by the Court and the Court will be entitled under section 148 to grant the application. There are several other instancesto be found in the Code where different kinds or acts are either prescribed or allowed by the Code to be done within a period of time to be fixed by the Court and in all these cases tne Court willhave jurisdiction under section 148 of the Code to entertain applications for extension of time and to grant it. If this is the true construction and effect of section 148. we must consider whether the present order of the learned Judge of the City Civil Court setting aside the ex parte decree falls under any of the provisions of the Code, sothat the act required to be done by the defendant under that order, namely, to deposit a certain amount and to pay to the plaintiff also a certain amount towards costs, is an act which is prescribed or allowed by the Code, so that in case the defendant fails to comply with that order within the time fixed by it he can make an application to the Court for extension of time and the Court can grant such application under section 148 of the Code. Order 9, Rule 13 of the Code deals withthe question of setting aside ex parte decrees and it enables the Court where it is satisfied that the summons was not duly served, or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, to make an order 'setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and to appoint a day for proceeding with the suit'. Considering the terms of this Rule, it clearly appears, to my mind, ill at it does not refer to any particular act which should be done by the defendant within the time allowed by the Court, so that incase he fails to perform that art within the time so allowed or so fixed he can make an applicationto the Court for extension of time for performing it and the Court may grant it under section 148 of the Code. The Court has a discretion under this Rule either to grant the application for setting aside the ex parte decree or to reject it. In either event, it has to apply its mind to the facts put before it in order to satisfy itself whether the summons was not duly served upon the defendant or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, as the case may be. If on the materials placed before it the Court feels satisfied that there was sufficient ground preventing the defendant from appearing at the hearing of the suit, it is not as it it is bound to make an order setting aside the ex parte decree in absolute terms. It is given a discretion which it is required to exercise on a consideration of the facts of the particular case as to whether the order setting aside the ex parte decree should be absolute or that it should depend upon the compliance by the defendant with such terms as to costs, payment into Court or otherwise as it thinks fit to impose. In this case, the order setting aside the ex parte decree is not an absolute one. The learned Judge took, into account the circumstances in which the defendant could not appear at the hearing of the suit and on a consideration thereof he came to the conclusion that in the interests of justice it was not fair that he should pass an unconditional order setting aside the ex parto decree. Accordingly, the order that he passed was that the defendant do deposit a sum of Rs. 1,500 within four weeks in the Court and a further sum of Rs. 175 be paid to the plaintiff towards costs within the same period providing that in default of the deposit and payment by the defendant within the period fixed by him the notice of motion would stand dismissed with costs It cannot be disputed that this order was perfectly competent within Rule 13 of Order 9 of the Code. It is true that the procedure adopted in the City Civil Court is the same as the one prevailing on the Original Side of this High Court. Ordinarily, only an application is necessary for the Purpose of setting aside an ex parte decree under the Code and it is quite likely that when a conditional order setting aside an ex parte decree is passed it would not generally state that the application would stand dismissed in case of default by the defendant in complying with the terms of the order. On the Original Side of the High Court, however, the practice is to take out a notice of motion for the purpose of setting aside an ex parte decree and the same procedure is adopted by the Rules framed for the business of the City Civil Court. On such notice of motion, the order that is invariably made is that in case the defendant fails to comply with the terms of the order within the time allowed by the Court, the notice of motion shall stand dismissed with costs. In view of this procedure, it cannot be disputed that the learned Judge's order was in any way irregular or invalid. Although Order 9, Rule 13 does not in terms contemplate such an order, in my opinion, it is within the discretion of the Court as to what type of order should be passed under that Rule and it is a matter of exercise of discretion by the learned Judgehearing the notice of motion whether, while setting aside an ex parte decree on certain terms, to allow the defendant to comply with the terms within a certain time fixed by him and then to have the notice of motion he Put up again before him for final order on the basis of compliance or non-compliance with those terms. This procedure, however, might involve a considerable delay and, therefore, it is just as well that the Gourd passes an order disposing of the notice of motion entirely on the day of its hearing and that can be done only if the order specifies the consequences following upon the non-compliance with the terms thereof. If such an order is not illegal or invalid in any sense of the term and in my opinion it is not, then the Court which passes that order immediately became functus officio on the passing of that order. It can possibly have no jurisdiction over the subject matter of the Notice of Motion at all after the order is passed and, therefore, any application by the defendant for extension of time for the purpose of complying with the terms of that order in the event of his having failed to comply with them within the time allowed by the Court, would not be entertainable by that Court.

7. Accordingly, the application for extension of time made by the defendant in this case could not he entertained by the learned Judge under section 148 of the Code. There arc, as stated above, two strong reasons for it, firstly, the deposit and the payment of the respective amounts ot money required to be made by the order of the learned Judge is not an act which is allowed or prescribed by the Code and secondly, the learned Judge ceased to have seisin of the matter immediately he passed the order disposing of that Notice of Motion. The effect of the order was that on failure on the part of the defendant to make the deposit as well as the payment required by the order within the period fixed for that purpose, there was an automatic dismissal of the Notice t Motion on the expiry of that period. It was not necessary that the Notice of Motion should be brought up before the learned Judge over again for any final Order. If it was so necessary in the event of the final order not having been passed finally disposing of the Notice of Motion, then although the terms of the order did not amount to an act prescribed or allowed by the Code, the Court would have inherent jurisdiction under section 151 of the Code to grant further extension of time. Section 148, however, in any event would have no application at all, only for the reason that the deposit and the payment required to be made by the order were not acts which were either prescribed Or allowed by the Code. They merely formed the conditions imposed by the learned Judge in order to test the bona fides of the defendant before the ex parte decree could be set aside. In this view of the matter, in my opinion, the learned Judge was perfectly right in holding that once he had disposed of the Notice of Motion and passed a final order on it, he was completely functus officio and he had no seisin over the matter at all, and that, therefore, he could not entertain any application on the part of the defendant requesting that the time for making the depositand payment as required by the order be ex-tended.

8. It was, however, contended by Mr. Lulla, the learned advocate for the defendant, that there were several authorities including those of the Privy Council which held that section 148 of the Code invariably applied in all cases where anything was required to be done by a Court in respect of any suit or proceeding, within the time fixed by it. He went to the length of contending that even if the Court was functus officio by reason of the fact that a final Order On the Notice ot Motion was passed, it had ample jurisdiction under section 148 of the Code to entertain the application for extension of time and grant it. Now. I need not refer to those cases which were cited by Mr. Lulla, because all of them refer to acts which are either prescribed or allowed by the Code to be performed either during the time allowed by the Code itself or by the Court. Two of the cases which he relied upon actually fall under Order 7, Rule 11, clauses (b) and (c) of the Code. I have referred to those clauses in the earlier part of the judgment and it is evident, that those two clauses do contemplate certain specific acts to be done by the plaintiff within the time allowed by the Court, which would mean that the Court continued to have complete seisin ot the matter and it was not functus officio at all and, therefore, it was competent to grant the extension of time for doing of the act if it was applied for. Those cases, however, cannot possibly apply to the facts of the present case. As I have pointed out above, in this case, a final order was already passed by the learned Judge and he had nothing whatever to do with that matter thereafter and there is no provision in the Code which empowers a Court which at one time was seized of the matter and later became functus officio to be re-seized of it, so as to modify the order that it had already passed. It may be the function of the higher Court to grant the relief if available in law. But, in no event, can the learned Judge himself reopen the matter, revise his own order and grant the extension of time under section 148 o the Code.

9. The next question then is, as to whether this Court sitting in revision could exercise its powers to grant the relief which the defendant asked for and failed to get before the learned Judge. It was urged by Mr. Lulla that this Court has got unlimited powers to prevent any injustice being done to any party in any particular case and he submitted that this was a case in which by refusing the extension of time the learned Judge had deprived the defendant of his legitimate right of defending the suit. It should, however, be pointed out that, whatever the powers of the High Court, they have got to be exercised within tha, four comers of the law as it stands. The inherent, jurisdiction the High Court undoubtedly has, bud that has also got to be exercised in cases where the lower Court had jurisdiction to deal with a matter an while exercising that jurisdiction had caused injustice to one party or the other. In such a case it is certainly open to the High Court to in-tervene and if it finds that any injustice was really done to one party or the other, then it would certainly reverse the order of the lower Court. Thepresent, however, is not a case of that kind at all. The learned Judge in the City Civil Court had no jurisdiction whatever to entertain the application for extension of time made by the defendant and I need not say that the High Court cannot confer any jurisdiction upon a lower Court which it has not by exercising its inherent powers. That can only be done by the Legislature. Consequently, in spite of the very strenuous appeals made by Mr. Lulla on behalf of the defendant, that he should be given an opportunity to defend the suit, I am afraid I cannot interfere in the matter at all. I may point out that the defendant had ample opportunity before the trial Court for defending the suit. It appears from the judgment of the learned Judge that the advocate who was engaged by the defendant for the suit had repeatedly written to the defendant for instructions and that the advocate had eventually, at the time when the suit reached hearing, to withdraw his appearance Stating to tile Court that he had no instructions in the matter. If the defendant in spite of repeated letters from his advocate did not choose to actively prosecute his defence by giving proper instructions to his advocate for so long a time, and even after the order setting aside the ex parte decree was passed he could not either find money or the time for remitting the amount of the deposit to be made in pursuance of the order until the last day of the four weeks' period which was allowed to him, in my opinion, it is futile now to appeal to the Court for any sympathetic consideration. There are certain gross cases where Courts do relent in favour of parties who had bona fide committed errors in prosecuting their claim or defence. This, however, is not a case of that kind at all. At any rate, this question docs not survive for consideration inasmuch as I have already held that the learned Judge himself had no jurisdiction to grant any extension of time in order to enable the defendant to carry out the terms of his order and that, therefore, this Court is entirely helpless in the matter.

10. In the result, the application is dismissedwith costs.

11. Application dismissed.


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