1. This is a second appeal filed by the original defendant Shankar Sadu Wanjhe, against the order and judgment of the District Judge remanding the matter back to the trial Court for a proper hearing after oral and documentary evidence is taken on record.
2. The matter arises in this war. The respondent, Smt. Parwatibai Ramchandra Dongre, who is the original plaintiff, filed a suit for possession of the eastern portion of the house situate at Dhangavadi, Taluka Bhor, and also for damages at Rs. 755/-.
3. The suit was filed in the Court of the Civil Judge, Junior Division, Bhor, and it would appear that the defendant had engaged two lawyers, one from Poona and the other one from the local Bar. However, in the events that happened the Advocate from Poona Shri Dube could not be present at the time of the hearing and the local Advocate Shri Gupte withdrew his appearance at the time of the hearing. The result was that the defendant was left without the aid of an Advocate. The learned Civil Judge refused to grant to the defendant even a short adjournment and proceeded with the trial, with the result that in substance the defendant was unable to place his case before the Court. The trial Court nevertheless proceeded with the matter and decreed the suit against the defendant.
4. The defendant filed an appeal which is Civil Appeal No. 591 of 1973 in the Court of the District Judge at Poona. It was argued before the learned District Judge that although the defendant had engaged two lawyers, i.e., Shri Dube from Poona and Shri Gupta from Bhor, in the events that happened he was left without legal representation. Thus, when the defendant entered the witness-box he had no advantage of the skill and advice of a lawyer. He could not, therefore, conduct his defence properly or cross-examine the plaintiff's witness.
5. In these circumstances it was argued before the District Court that the trial was vitiated as no reasonable opportunity was allowed to the defendant to be represented by a lawyer and also to lead necessary evidence on his behalf.
6. The learned District Judge very properly came to the conclusion that the defendant had, without any fault on his part, been placed in an invidious position. This is what he observed: 'The advantage of the lawyer's services is of much importance to a litigant. In the present case the defendant was no at fault and I feel that the lower Court should have granted a short adjournment.'
7. It is significant that the learned District Judge then went on to notice the conduct of the defendant and found that the defendant's conduct was 'eloquent' in the sense that he had exercised due diligence and although he had been let down by his Advocates he immediately applied to the Court on the 25th of July, 1974, that is only two days after the date on which the trial was held, with a request that the defendant should be allowed to lead evidence and that he should be allowed to produce certain documents which he had brought with himself. The learned District Judge has observed as follows:-
'........... Here is a case where the defendant who had initially no advantage of lawyer's services approached the Court before the decision of the suit with a request that he may be allowed to lead evidence. It was rightly urged by Shri Dube that this diligent conduct of the defendant should have been properly construed by the Court by granting the necessary permission for leading evidence. I think that all these circumstances put together would indicate that there was prejudice to the defendant and it is in the interest of justice that the suit should be remanded.'
8. It is substantially clear that the learned District Judge, after noticing the facts, came to the correct conclusion that at the trial the defendant had been prejudiced and it must follow that thereby the trial was vitiated. That is why the learned District Judge came to a clear finding that in the interests of justice it was necessary to remand the suit to the trial Court for a fresh trial.
9. Now, curiously even though he had found in favour of the original defendant who was the appellant before him, he proceeded to consider a request for costs against the appellant who was succeeding in the appeal before him. It was put to the learned District Judge that the plaintiff was a widow, and that at least she was not at fault for what had happened. That may be true, but it is questionable whether such an argument is relevant. If an appellate Court is satisfied that the original trial had been vitiated and decided to remand the suit for a fresh trial, it is unnecessary to consider the effect of such an order on the opponent.
10. In any event, the learned District Judge proceeded to order that the plaintiff's costs of the suit and of that appeal should be deposited in the Court on or before the 10th of January 1975 and that if the costs are so deposited, the suit shall stand remanded to the lower Court for a fresh trial according to law.
11. Mr. S. S. Dighe, the learned Advocate for the appellant, has contended that it was illegal on the part of the learned District Judge to make a conditional order of remand and order that the suit should be remanded if and only if the respondent-plaintiff's costs in the appeal before him as well as in the suit are deposited in the Court by a particular date.
12. Mr. Dighe argues that that part of the learned District Judge's order which provides for payment of costs is not warranted by any provisions of law and that in fact it contravenes the provisions of Section 35 of the Civil Procedure Code. Mr. Dighe also says that in any event although the question of costs is a matter of discretion of the Court there has been in this case no real exercise of discretion by the learned District Judge when he made the order for deposit of costs as a condition precedent to the order for remand.
13. It requires to be noticed, at this stage, that a further even took place after the conditional order of remand was made.
14. It would appear that the defendant was unable, according to him, by reason of his illness, from depositing the costs in the Court on or before the 10th of January, 1975. Only two days thereafter, that is to say, on the 13th of January, 1975, the defendant made an application to the District Court, Poona, for extension of time to deposit the costs in the Court as ordered by the District Judge. The learned District Judge heard Advocates for both the parties and then dismissed the application by a short order dated the 21st of January, 1975. A certified copy of the application for extension of time and the order thereon has been produced before me. The learned District Judge noticed that the remand order was made on condition that the costs were deposited, failing which the appeal would stand dismissed and that thus the payment of costs was made a condition precedent.
15. Relying on a judgment of this Court in L. P. Jain v. Nandkumar, : AIR1961Bom254 , the learned District Judge felt that he had become functus officio and, therefore, could not extend time. Curiously, he went on to observe that 'on merits also I do not think that this is a fit case to extend time.'
16. Mr. Dighe has contended that the order of the District Judge refusing to extend time is wrong because the learned Judge has placed reliance on a judgment of this Court which has now been held to be no longer good law. Shri Dighe referred to a recent judgment of this Court in B. C. Shah and Co. v. T. P. Kanani (1975) 77 Bom LR 511, where Kania, J. after considering the judgment of the Supreme Court in Mahant Ram Das, : 3SCR763 and other judgments held that the decision in L. P. Jain v. Nandkumar, : AIR1961Bom254 , is no longer good law.
17. Mr. A. H. Vaishnav, the learned Counsel for the respondent-original plaintiff has contended, firstly, that the learned District Judge properly exercised his discretion in protection of the plaintiff by awarding costs of the appeal before him and of the suit, as a condition precedent to the remand of the suit for a fresh trial. His argument is that after all it was not the plaintiff's fault that the defendant's Advocates did not or could not appear on the date of the hearing of the suit.
18. As regards the question of extension of time, Mr. Vaishnav supports the order of the learned District Judge dated the 21st of January, 1975, on the ground that the learned District Judge apart from being functus officio has also dismissed the application for extension of time on merits.
19. It requires to be mentioned that Mr. Vaishnav at one stage of the proceedings wanted to argue on merits in order to show that the learned District Judge ought not to have made an order for remand.
20. Now, it must be noticed that the respondent, Parwatibai, who is the original plaintiff, has not filed any cross-objections. Even though the learned District Judge sought to make a conditional order of remand, the fact remains that the judgment against the plaintiff. In view of the provisions of Order 41, Rule 22, it is not open to Mr. Vishnav, as Advocate for the respondent, who has not filed cross-objections, to make an attempt to show that the judgment of the District Court as to the order or remand was wrong. No provision of law has been shown to me which would warrant such a contention on the part of Mr. Vishnav. On the other hand, Order 41, Rule 22 clearly provides that any respondent may support the decree not only generally but also on the grounds decided against him in the Court below. A respondent is at liberty, if he so wishes to challenge the decree against his but he must first file his cross-objections; after which he can certainly do so. In my opinion, it is not permissible to a respondent to challenge a decree without filing cross-objections although he can certainly support it. Mr. Vaishnav's attempt is clearly misconceived.
21. The question that really arises for my determination is whether the lower appellate Court properly exercised its discretion in awarding costs against the appellant who was succeeding in the sense that the learned District Judge has on appreciation of the facts before him come to the definitive conclusion that the defendant had been prejudiced at the trial by reason of the circumstances mentioned and that the trial had been vitiated.
22. Now, there is no doubt that Section 35 of the Civil Procedure Code empowers the Court in its discretion to order payment of costs. But this discretion has to be properly exercised within the frame-word of the law and the normal rule, which is well known, is that costs follow the event. There is power in the Court to direct in any particular case that costs shall not follow the event. But in that case the Court has to state its reasons in writing.
23. Now, in the case before me it is substantially clear that the learned District Judge was fully satisfied that the defendant had been prejudiced at the trial and that he had, in so far as he could do without the aid of an Advocate exercised due diligence and approached the Court for permission to lead oral evidence and place documents on record. I find it difficult to appreciate, in the face of such a finding, how the learned District Judge could feel that the submission made to him on behalf of the original plaintiff that the defendant should be ordered to pay the plaintiff's costs of the suit as well as the appeal irrespective of the result of the suit in the lower Court after remand was quite reasonable and proper. In my opinion, the two approaches clash against each other. Once the Court has decided that the appellant before it had demonstrated that facts and circumstances existed, on the basis of which, in the interests of justice, the matter must be remanded to the trial Court for a fresh trial, the question of granting costs against such a successful appellant could not arise.
24. It can hardly be disputed that the defendant, as the appellant before the District Court, succeeded in the appeal and obtained a remand. In spite of that not only has he been deprived of his own costs but he is made to pay the costs of the losing party. This, in my opinion, is no real exercise of discretion under Section 35 of the Civil Procedure Code. As far as I am aware, such orders are sometimes made, but they are invariably made with consent because in that case the appellant rather than losing his appeal is content to obtain an order of remand by consenting to pay costs or by having the costs thrown away, as the case may be. But there is little doubt in my mind that an order for payment of costs by the successful appellant is not warranted by any provision of law. At least no such provision has been shown to me, by Mr. Vaishnav.
25. In my view, the appellant-original defendant is properly aggrieved when the complains that after succeeding in the appeal before the learned District Judge and obtaining a remand (so that now the trial will be afresh at which he would be in a position to lead proper evidence and prove his case) he should be placed in a position where he is not only deprived of his own costs but made to pay the costs of the losing party.
26. It may also be observed that apart from a laconic observation that the request for costs was quite reasonable and proper, no reasons have been given why such costs should be awarded when the respondent was losing the appeal and the appellant had satisfied the Court that he had been prejudiced at the trial.
27. In this view of the matter, this second appeal must succeed to the extent that the order dated the 10th of December, 1974, passed by the learned District Judge, Poona, will have to be modified and the requirement as to deposit of costs set aside.
28. The other point which was raised in this second appeal before me is as to the legality and the propriety of the order dismissing the appellant-defendant's application for extension of time.
29. In the view that I have taken that the order of the Lower Appellate Court requires to be modified, it is not necessary to discuss this aspect of the matter. However, since both the Advocates have advanced arguments, It is appropriate to briefly refer to this aspect of the matter also.
30. It requires to be noticed that in the case before me the application for extension of time for depositing costs in the Court was made after the time had expired. The record shows that the time expired on the 10th of January, 1975, and the application was made on the 13th of January, 1975. The learned District Judge felt that he was bound by a judgment of this Court in L. P. Jain v. Nandkumar (supra) where a Single Judge of this Court S. M. Shah, J., had held that even if the application for extension of time were to be made within the period fixed for the making of the deposit, yet the Court would be powerless to grant any extension of time. The learned Judge (S. M. Shah, J.) also took the view that as the final order had been passed on the Notice of Motion, there was no scope for the exercise of inherent jurisdiction under Section 151 of the Civil Procedure Code.
31. Now, it has been mentioned that his decision is no longer good law and this aspect has been discussed by Kania, J., in B. C. Shah & Co. v. T. P. Kanani 77 Bom LR 511. The learned Judge (Kania J.) referred to a decision of the Supreme Court in Mahanth Ram Das v. Ganga Das, : 3SCR763 , as well as to certain other judgments of this Court and came to the conclusion that the decision in L. P. Jain v. Nandkumar, 63 Bom LR 48 had been considerably undermined by the decision of the Supreme Court in Mahanth Ram Das v. Ganga Das, and also in view of certain other decisions to which he referred.
32. It is not necessary to once again to discuss all these judgments in order to find out what are the powers of a Court for extending time. This aspect of the matter has already been decided and the observations of Kania, J., may be usefully set out:-
'........... It was held by the Supreme Court that the High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment, Section 148, Civil Procedure Code, in terms, allowed extension of time even if the original period fixed had expired, and Section 149 was equally liberal. It was further held that such procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely stop a Court from taking note of events and circumstances which happened within the time fixed. It was observed that Sections 148, 149 and 151 of the Civil Procedure Code clothed the High Court with ample power to do justice to a litigant if sufficient cause was made for extension. The observations of their Lordships of the Supreme Court show that the High Court could have exercised its powers first when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code were filed. If the High Court had felt disposed to take action of 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. Although in that particular case, the application for extension of time was made before the time granted to make the payment of additional Court-fees had expired, the actual order of extension was made after that period had expired and the observations of the Supreme Court clearly go to suggest that such an application could have been granted even if it had been made after the time granted had expired. Mr. Desai tried to distinguish this case on the ground that it related to the question of payment of Court-fee and that in such a case. Section 149, Civil Procedure Code gave ample powers to the Court to grant the extension of time sought for by the appellant. This is true and the provisions of Section 149 of the Code have been taken note of by the Supreme Court. However, the further observations of the Supreme Court, although obiter, are binding on me and they clearly show that it is not merely in a case covered by Section 149 but in the case of all orders, which are regarded as procedural, that the Court has the power to extend the time granted, in the interests of justice.'
33. Mr. Vishnav has argued that the ratio of the Supreme Court decision is limited to a case where application for extension of time has been made before the expiry of the time. I am afraid. I am unable to agree with this contention. The Supreme Court has clearly laid down that the High Court is clothed with ample power under Sections 148, 149 and 151 of the Civil Procedure Code to do justice to the litigant if sufficient cause has been made for extension of time. I also agree with the observation of Kania, J., that the observations of the Supreme Court in Mahanth Ram Das v. Ganga Das clearly go to suggest that an application for extension of time could have been granted even if it had been made after the time granted had expired.
34. As a matter of fact, Section 148 itself provides in terms for enlargement of time 'even though the period originally fixed or granted may have expired.'
35. There is thus no substance in the argument of Shri Vaishnav that the decision of the Supreme Court was limited in the manner suggested or that it can be distinguished as he seeks to do.
36. The learned District Judge's view which is that he was functus officio was clearly wrong and it is a matter of regret that the decision of the Supreme Court reported as far back as 1961 was not brought to this attention nor was the decision of this Court in B. C. Shah and Co. v. T. P. Kanani (supra) which was decided as far back as the 29th of August 1974, cited before him.
37. In the result, the appeal is allowed and the order of the learned District Judge, Poona, is modified so as to make it one of unconditional remand. The suit shall stand remanded to the trial Court for a fresh trial and it shall be so tried by the Court of the Joint Civil Judge, Junior Division, Poona, to which it will be transferred from the file of the Civil Judge, Junior Division at Bhor.
38. In the special circumstances attending this matter there will be no order as to costs so far as this appeal is concerned.
39. Order accordingly.