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Mahabir Prasad JaIn Vs. Smt. Indira Devi JaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 92 of 1985
Judge
Reported inAIR1986All238
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 9 - Order 21, Rule 1; General Clauses Act, 1897 - Sections 10
AppellantMahabir Prasad Jain
RespondentSmt. Indira Devi JaIn and ors.
Appellant AdvocatePradeep Kant Hari Kant and ;R.K. Srivastava, Advs.
Respondent AdvocateUmesh Chandra, ;Krishna Chandra and ;U.K. Dhaon, Advs.
DispositionPetition dismissed
Excerpt:
.....either to the plaintiff or to hiscounselonany date before 16-5-83; hewas not competent to make the payment in deposit in court on 16-5-83 or thereafter. so far as the place for depositing the amount is concerned, there is no statutory provision, in a case like the present one, for deposit of the amount in court. shiam lal air 1924 all 218 (fb) where it was observed that there is a generally recognised principle of law under which parties who are prevented from doing a thing in court on a particular day, not by any act of their own, but by the court itself, are entitled to do it at the first subsequent opportunity, it was held that the offer of the cheque on 2-1-1957 satisfied the requirements of the court's order. pearay lal 1961 all lj 889. there a compromise decree between the landlord..........provision, in a case like the present one, for deposit of the amount in court. so far as the date of deposit is concerned, reliance has been placed on section 10, general clauses act. certain decisions have been cited on either side. these may be considered.11. learned counsel for the revisionist referred to the case of madan gopal daga v. rallis india ltd : air1957cal598 . a suit was adjourned with the direction for the applicant to pay rs. 500/- as costs by the end of december 1956 or in default the suit was to stand dismissed. there were public holidays up to 1-1-1957. a cheque in payment of the amount of rs. 500/- was sent to the other party on 2-1-1957 which was refused on the ground that the cheque should have reached by the end of december 1956. relying upon the decision of.....
Judgment:
ORDER

Kamleshwar Nath, J.

1. This revision, under Section 25, Provincial Small Cause Courts Act, against an order dated 22-7-1985, of the IIIrd Additional District Judge, Lucknow, exercising powers of the Judge, Small Causes, has been opposed at the stage of admission and the learned counsel for the parties have been heard in detail on merits.

2. Small Cause Court Suit No. 33 of 1977 was filed by opposite party 3, Raj Kishore Rastogi, against the revisionist Mahabir Prasad Jain, his wife opposite party 1, his son opposite party 2, and other opposite parlies for ejectment from a house and for recovery of arrears of rent. The suit was contested. Parlies had led all their evidence; only the present revisionist Mahabir Prasad Jain was to be examined as a witness for the defendants. On 28-5-1981, an application for adjournment on the ground of the revisionist's inability to be present having been rejected, the suit was decreed by the Judge Small Cause Court on 29-5-1981. Civil Revision No. 78 of 1981 was filed by the defendants who had applied for adjournment, but their prayer was refused. Civil Revision No. 111 of 1981 was filed by the present revisionist whose evidence could not be recorded. The two revisions were heard and decided by Hon'ble K.S. Varma, J. by judgment dated 26-4-1983 -- copy, Annexure 2, to the counter-affidavit in this revision. The relevant portion of the order of this Court runs as follows :--

'For the reasons stated, above, both the revision applications are allowed. The decree passed by the trial Court on 29-5-1981 is set aside and S.CC. Suit No. 33 of 1977 is restored to its original number. The suit shall stand restored only on the following conditions : --

(1) That defendant 1 pay to the plaintiff or his counsel a sum of Rs. 750/- on any date before 16-5-1983.

(2) If the payment is made in the manner indicated above the trial court on 16-5-83 permit defendant 1 Mahabir Prasad Jain to examine himself and after the cross-examination of Mahabir Prasad Jain no further evidence shall be led by any of the parties.

(3) On 16-5-83 the case shall not be adjourned at the request of any of the parties.

(4) The trial Court shall decide the case by 26th May, 1983 on the oral and documentary evidence already on record and on the evidence of Mahabir Prasad Jain.

(5) The dates referred to above have been fixed in the presence of the parties.'

The revisionist Mahabir Prasad Jain, who was defendant 1 in the case, was expected to pay Rs. 750/- to the plaintiff (Raj Kishore Rastogi Opposite Party 3) or his counsel on any date before 16-5-1983. The revisionist's case is that he offered the sum to the plaintiff on 13-5-1983, but the plaintiff refused to accept the amount. The courts were closed on 14-5-1983 and 15-5-1983 on account of the holidays Second Saturday and Sunday. On 16-5-1983 the revisionist filed an application before the lower Court for permission to deposit the amount in Court. The application was opposed by plaintiff-opposite party 3. The Court below rejected the revisionisl's application and allowed the plaintiff's objection by the impugned order dated 22-7-1985:

3. Sri Pradeep Kant Advocate has appeared on behalf of the revisionist. His contention is that since the Courts were closed on 14th and 15th of May, 1983, the defendant-revisionist was entitled, in law, to deposit the amount in Court on 16-5-1983. He next contends that since on 13-5-83 the plaintiff had refused to accept the amount, offered to him by the revisionist, he was entitled to deposit the amount in Court. In this connection it is also complained that the lower Court did not give an opportunity to the revisionist to adduce evidence to prove the refusal of the offer of the amount by the plaintiff-opposite party 3 made by the revisionist.

4. Sarvsri Umesh Chandra and U.K. Dhaon have appeared on behalf of plaintiff-opposite party 3; learned counsel for the opposite party contend that the order of the Court had given an opportunity to the revisionist to pay the amount to the plaintiff on any date before 16-5-1983 and, therefore, the revisionist was bound to pay the said amount before that date and was not entitled to deposit the amount in court on 16-5-1983 despite the fact that 14-5-1983 and 15-5-1983 were holidays. He next contends that the manner of payment had been specifically set out by this Court under its order dated 26-4-1983, referred to above, and the defendant was obliged to make the payment only in accordance with that manner. Since the prescribed manner was only for payment to the plaintiff or his counsel, the revisionist was not entitled to deposit the amount in Court It was also pointed out that the parties had filed their affidavits on the question of refusal by the plaintiff which the Court below had considered and that, in any case, the revisionist does not state having made any offer to the plaintiffs counsel, which was the alternative available to him in the event of the plaintiffs refusal, if any, to receive the amount.

5. Learned counsel for the parties have been heard at length.

6. In order to consider and apply the true law to the case, it is necessary to appreciate the true nature of the High Court's order dated 26-4-1983 under which the revisionist had to pay the sum of Rs. 750/-. While directing the suit to be restored, the Court clearly recorded that the suit would stand restored 'only on the following conditions', being satisfied. In other words, if any of the conditions was not satisfied, the suit was not to be restored.

6A. The first condition said that the present revisionist would pay 'to the plaintiff or his counsel' the sum of Rs. 750/- 'on any date before 16-5-83'. The second condition said that if the payment was made 'in the manner indicated above' the trial Court would permit the present revisionist to examine himself on 16-5-83. The expression 'in the manner indicated above' in the second condition, once for all, expresses the manner in which the revisionist was bound to make the payment. The manner, indicated in the first condition, was that the revisionist was to pay the amount 'to the plaintiff or his counsel.'

7. Admittedly, the amount was not paid to the plaintiff's counsel, indeed, learned counsel for the revisionist admitted that no effort was made to pay the amount to the plaintiffs counsel.

8. On the question whether or not the revisionist had offered the amount to the plaintiff on 13-5-1983, the Court below has mentioned and considered the versions, set out by both the parties, and had arrived at the conclusion that the revisionist did not offer the amount to the plaintiff. This is a finding of fact into which this Court cannot go while considering a revision under Section 25, Provincial Small Cause Courts Act; but even if it be assumed that this Court could examine the finding of fact, the undoubted fact is that the revisionist had not offered the amount to the plaintiffs counsel. The High Court had specifically given to him the option of paying the amount either to the plaintiff or to his counsel. As soon as he felt that the plaintiff was not willing to receive the amount, the revisionist was bound to offer the amount to the plaintiff's counsel in terms of this Court's order. Since he failed to do that, it must be held that the revisionist did not perform the first condition contained in the order of the High Court.

9. Further, it is the settled law that when an act is required to be done in a particularmanner, it must be done in that manner only and in no other manner. This proposition is so well-settled that it hardly needs any authority, but reference may be made to the decisions in the cases of Nazir Ahmad v. King Emperor and K.N. Guruswamy v. State of Mysore : [1955]1SCR305 . More recently in the case of Ram Chandra Keshav Adke v. Govind Joyti : [1975]3SCR839 the Supreme Court referring to the English Law observed as follows : --

'A century ago in Taylor v. Taylor (1875) 1 Ch D 426, Tessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way. the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time.'

The High Court had clearly directed in Condition 2 that payment was to be made in the manner set out in Condition 1, and Condition 1 in unmistakable terms set out that the payment was to be made to the plaintiff or his counsel of any date before 16-5-83. The result is that the revisionist had a right to make the payment either to the plaintiff or to hiscounselonany date before 16-5-83; hewas not competent to make the payment in deposit in Court on 16-5-83 or thereafter.

10. Of course, if there is a statutory provision, entitling the revisionist to make the payment in Court despite the Court's order, the deposit made in court on 16-5-83 can be saved; but the learned counsel for the revisionist has not been able to point out to any such statutory provision. So far as the place for depositing the amount is concerned, there is no statutory provision, in a case like the present one, for deposit of the amount in Court. So far as the date of deposit is concerned, reliance has been placed on Section 10, General Clauses Act. Certain decisions have been cited on either side. These may be considered.

11. Learned counsel for the revisionist referred to the case of Madan Gopal Daga v. Rallis India Ltd : AIR1957Cal598 . A suit was adjourned with the direction for the applicant to pay Rs. 500/- as costs by the end of December 1956 or in default the suit was to stand dismissed. There were public holidays up to 1-1-1957. A cheque in payment of the amount of Rs. 500/- was sent to the other party on 2-1-1957 which was refused on the ground that the cheque should have reached by the end of December 1956. Relying upon the decision of Full Bench of our Court in the case of Mohd. Jan v. Shiam Lal AIR 1924 All 218 (FB) where it was observed that there is a generally recognised principle of law under which parties who are prevented from doing a thing in court on a particular day, not by any act of their own, but by the court itself, are entitled to do it at the first subsequent opportunity, it was held that the offer of the cheque on 2-1-1957 satisfied the requirements of the court's order. The application of the provisions of Section 10, General Clauses Act, was negatived, but the deposit was accepted to be in time on the principle referred to above. The significant point is that the aforesaid Full Bench decision of this Court (Mohd, Jan v. Shiam Lal) (supra) related to a case of preemption decree, whether the amount was to be deposited in court under Order 20, Rule 14, C.P.C., and hence the general principle of the right to do the act on the reopening day of the court was applicable. The decision was explained in the case of Roshan Lal v. Ganpat Lal : AIR1938All199 and it was observed that where the direction of the court of agreement between the parties is not specifically for depositing the amount in court, but an option is left either to deposit in court or pay out of court, as set out under Order 21 Rule 1, C.P.C., the depositor must offer the payment out of court if the last day is a court holiday. The position was similarly explained in the case of Ausaf All v. Pearay Lal 1961 All LJ 889. There a compromise decree between the landlord and tenant stipulating payment of arrears by 15-6-1947, whereupon judgment-debtor would pontinue as a tenant, but if he failed to pay the amount by the date fixed, the suit for ejectment would be deemed to have been decreed and the tenant would have been liable to be ejected, the civil courts being closed, the amount was deposited on the reopening day, i.e., 5-7-1947. Following the earlier decisions of this Court and explaning the Full Bench decision in the case of Mohd. Jan v. Shiam Lal (supra) it was observed that having obtained concession on agreeing to make payment by a date fixed, they had to comply with that conditions as long as it was possible for them to do so by making direct payment to the decree-holder. It was also observed that the date falling on a civil court-closed day, the judgment-debtor must have had knowledge of it on the date of agreement and he would have also known that he would have to make payment to the decree-holder directly. Incidentally, these observations meet an observation in the Calcutta case of Madan Gopal Daga v. Rallis, India Ltd., (supra) that the principle of construction of the court's order is that the court grants time knowing that the time will expire on a holiday so that the litigant who is required to do an act within that time can get the benefit and grace of the additional time involved in holidays and pay on the very next subsequent day on which the Court reopens.

12. Learned counsel for the revisionist also relied upon the case of Krishna Dhan v. Ummatual Zohra Begam : AIR1949All209 where security was required to be deposited under Order 45, Rule 7, C.P.C, within the period fixed by the rule, after grant of certificate of fitness to appeal to the Supreme Court It was for this reason that Section 10, General Clauses Act, was held to apply to the case and deposit of security on the day of the opening of the court, immediately after the holidays, was considered to be appropriate.

13. The true principle seems to be that the parties are bound to abide by the terms of the order of the court. If the terms stipulate that the amount be deposited in court, the deposit can be made on the day of the reopening of the court immediately following the date fixed by the order, if that date happens to be a court-closed holiday. The Supreme Court decision in the case of C. F. Angadi v. Y.S. Hirannayya : [1972]2SCR515 would make out the same position. There the compromise decree stipulated that the amount be deposited in the court by 1-1-1960, in default of which the suit was to stand dismissed. The courts were closed on 1-1-1960 and so the deposit was made on 2-1-1960. It was observed at page 241 (para 7) as follows : --

'.........we are concerned with a decree whichspecifically provided that the respondent should deposit the amount in court. He had, therefore, no option to pay the same to the appellant and the appellant, perhaps, would have been within his rights if he refused a tender of the amount to him.' Approving the view of the Full Bench in the case of Mohd. Jan v. Shiam Lal (AIR 1924 All 218) (supra) it was held that the party was entitled to do the act at the first subsequent opportunity and, therefore, the deposit on 2-1-1960 was in substance and effect in terms of the compromise decree. In this connection the Supreme Court held that the decisions in the case of Roshan Lal v. Ganpat Lal (supra) and other cases of this court on that line were not applicable. It appears to me that if by virtue of an order of the court, by agreement or by statute, a party is not tied down to a particular mode of depositing the amount in court, but has other options open, the party must comply with any of the other options on or before the stipulated date if such date happens to be a court holiday.

14. Learned counsel for the revisionist referred to the case of Rakhadoo Issoo Kohari v. Narayan : AIR1959MP352 to show that in the absence of a direction of the court that the money must be paid to the defendant personally, the deposit of the amount in court on the day of reopening of the court, immediately after the court vacations, must be treated to be in time and Section 10, General Clauses Act, would apply. With respect, I may say that an analysis of the provisions of Section 10, General Clauses Act, is not set out in the decision and that it is conceded by the learned counsel for the revisionist himself that the provisions of that Section only dealt with a construction of the statutes and can hardly be applied to a case where a certain thing is directed to be done by a decree of the court. That is what in the case of Sankaran Unni v. Kummakattil : AIR1925Mad743 , relied upon by the learned counsel for the revisionist, would show. The decision, however, goes on to say that the situation would be governed by a general principle of equity (apart from Section 10, General Clauses Act) under which parties which are prevented from doing a thing, not by any default of their own, but by the court itself, are entitled to do it at the first subsequent opportunity.

15. Learned counsel for the opposite parties has relied upon the decision in the case of Pt. Krishna Chandra Sharma v. Ramgulam : AIR1958MP295 for the proposition that Section 10, General Clauses Act, applies only to cases where an act is directed or allowed to be done by an Act and that where the plaintiff has two courses open to him, one of paying amount directly to defendant and the other of depositing it in court, he is not entitled to the benefit of Section 10, if the last date of deposit' happens to be a holiday.

16. What has, therefore, to be seen in this case is whether the order, dated 26-4-1983, of this Court had authorised the revisionist to deposit the amount in court or had required him to pay the amount only to the plaintiff or his counsel without the intervention of the court. As already indicated earlier, the order specifically said that the suit would stand restored only on the specific conditions being satisfied and that the payment, set out in Condition 1, was to be made (vide Condition 2) in the manner indicated in Condition 1. Condition 1 specifically said that the amount was to be paid 'to the plaintiff or his counsel'. The provision for payment to the plaintiffs counsel clearly indicates that the court specifically intended that the payment was to be made personally to the plaintiff or to his counsel. The conditions cannot be read to imply that the payment could also be made by a deposit in court.

17. In this connection reference may be made to the provisions of Order 21, Rule 1, C.P.C. It has been referred to in most of the rulings considered above, which runs as follows : --

' 1. Modes of paying money under decree(i) All money, payable under a decree shall be paid as follows, namely : --

(a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank, or

(b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or

(c) otherwise; as the Court which made the decree, directs.'

Under Clause (a) deposit may be made in court, under Clause (b) payment may be made out of court; under Clause (c) money may be paid' otherwise as the court which made the decree, directs.' Clauses (a), (b) and (c) are separated from each other by the expression 'or'. It is this use of the expression 'or' which might signify that the judgment-debtor has an option of adopting any of the direct modes at his discretion; but, a close appreciation of Clause (c), will indicate that it is not so. The test lies in appreciating the import of the word 'otherwise' within that clause- If the word 'otherwise' be omitted from the clause, then it could be said with some justification that the three alternatives, contained in Clauses (a), (b) and (c), are at the option of the judgment-debtor. In that situation, the rule would provide that the payment could be made either by deposit in court or by payment out of court or as the court which makes the decree, directs. But the addition of the word 'otherwise' in Clause (c) would give a different colour to the alternative provided by the clause. The true import should be that in a case where the court, which made the decree, directs an amount to be paid in a particular manner, the amount has to be paid only in that manner and not in the manners set out in Clauses (a) and (b). The expression 'otherwise' in Clause (c) signifies that in such an event there is no other way of making a payment, it must be paid strictly in accordance with the direction contained in the decree passed by the court. In the present case, the Court having directed that the payment be made to the plaintiff or his counsel, on any date before 16-5-1983, it was neither permissible to deposit the amount in court, nor to do so on 16-5-1983, despite the fact that 14th and 15th of May 1983 were court-closed holidays.

18. On a careful consideration of the entire matter, I hold that the revisionist was not entitled to make the payment by deposit in court or deposit the amount on 16-5-83. He was bound to pay the amount only to the plaintiff or his counsel and that too on any date before 16-5-83. The view of the court below is correct.

19. Learned counsel for the revisionist lastly urged that, alternatively, the delay may be condoned by this Court and the deposit made on 16-5-83 may be accepted as adequate. He says that objection of opposite party 3 is hyper-technical and does not satisfy the requirements of fair and substantial justice. Learned counsellor opposite party 3 contends that the objection is not at all hyper-technical but is substantial because non-compliance of the conditions, fixed by this court, would be a violation of the orders of this Court and because the conduct of the revisionist has not at all been fair. It is pointed out that in the suit for ejectment and recovery of arrears of rent ever since 30-5-1974, at the rate of Rs. 810A per month, the revisionist has been in arrears of Rs. 1,06, 182/-, in addition to costs etc. As pointed out, the suit had been contested by the revisionist, one set, his wife and two sons, second set, that the parties led evidence and that the only step left was the revisionist's own entry in the witness box for which opportunity had been given by this Court by means of the revisional order dated 26-4-83 in question. The judgment of the court below, contained in Annexure-1 to the counter affidavit, would show that the plaintiff-opposite party 3 claimed to have owned the property by two sale deeds, executed in 1971, by the revisionist in favour of the predecessor of Opposite party 3 and that the revisionist, his sons and wife, had also executed lease deed of the property, and yet they came out with the defence that these transactions were result of fraud and there was no relationship of landlord and tenant. The law has frowned upon the attitude of tenants denying the title of their landlords. Section 116, Evidence Act, creates an estoppel against a tenant. Section 20(2)(f), U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (U. P. Act No. 13 of 1972) sets out the principle of forfeiture of tenancy, on denial of title, as one of the grounds of eviction. The judgment would also show that except for partial payment of rent, the revisionist and others were found having been in arrears ever since 1973, while the suit was filed in 1977. The suit having been decided by the court below on 29-5-1981, the revisions figured in the High Court almost two years later. It has now figured before this Court after another 'two years. Again, it may be anybody's guess whether there will be another bout of litigation on the basis of title to the property, a question which the Court of Small Causes could examine only incidentially and not on merits. The upshot is that on the fact of it, the Opposite Party 3 has been deprived not only of the property, but also of the benefits arising out of the property since a long number of y ears. It is difficult to see what equity could prevail in favour of the revisionist. The fact of the case of Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta : [1985]3SCR825 are distinctly different from the present case. The dispute there related to deposit of arrears of rent in court under statutory provisions of the applicable rent control law. It may be useful to refer to the following observation in the very first para of the decision of Supreme Court which runs as follows : --

'Unwittingly, this Court should not be a party to the conferment of an undeserved advantage on a party to a proceeding guilty of a lapse though remediable and even unintentional.'

On a careful consideration of all the aspects, I am clearly of the opinion that the revisionist is not entitled to any further indulgence by this Court by modifying the earlier order, dated 26-4-83, contained in Annexure 2 to the counter affidavit. The revision must fail.

20. The revision is dismissed with costs. The stay order is vacated.


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