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Kanduri Sahu Vs. Nidhi Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 44 of 1964
Judge
Reported inAIR1966Ori44
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115, 148 and 151
AppellantKanduri Sahu
RespondentNidhi Sahu and ors.
Appellant AdvocateA.K. Rao and ;M.K.C. Rao, Advs.
Respondent AdvocateN.M. Das, Adv.
Cases ReferredIn L. P. Jain v. Nandakumar
Excerpt:
.....assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the inherent powers are, however, to be exercised by the court in very exceptional circumstances and such an order is not to be made unless absolutely essential for the ends of justice. it failed to exercise jurisdiction vested in it and its order is liable to be interfered with under section 115(1)(b) of the code......any period is fixed or granted by court for the doing of any 'act prescribed or allowed by this code' (code of civil procedure) the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.the underlined (here into ' ') expression furnishes the key to the construction of the section. there are certain provisions in the code under which the court fixes or grants time for the performance of certain acts. by way of illustration, a reference may be made to order 6 rule 18 and order 7 rule 11 (b) and (c) of the code. order 6 rule 18 says that if a party who has obtained an order for leave to amend does not amend accordingly within the lime limited for that purpose by the order, or if no time is thereby limited.....
Judgment:
ORDER

G.K. Misra, J.

1. An ex parte decree was passed against the petitioner on 20-2-1963. On 4-3-1963 an application was filed under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. On 26-9-63 the court passed the following order:

'That the Misc. case he allowed on contest against the O.P. subject to payment of Rs. 15/- as costs by the petitioner to the O.P. on or before the 10th day of Oct. 63, failing which the Misc. case shall stand dismissed.'

On 10-10-68 the petitioner prayed for extension of time for payment of costs on the ground that he was ill and bed-ridden and could not deposit the money on the dale fixed. On 7-11-1963 the application for extension of time for payment of costs was dismissed on the ground that the Court had no power to extend the time under Section 148 of the Code. Against this order, the Civil Revision has been filed.

2. Section 148 of the Code lays down that where any period is fixed or granted by court for the doing of any 'act prescribed or allowed by this Code' (Code of Civil Procedure) the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

The underlined (here into ' ') expression furnishes the key to the construction of the section. There are certain provisions in the Code under which the court fixes or grants time for the performance of certain acts. By way of illustration, a reference may be made to Order 6 Rule 18 and Order 7 Rule 11 (b) and (c) of the Code. Order 6 Rule 18 says that if a party who has obtained an order for leave to amend does not amend accordingly within the lime limited for that purpose by the order, or if no time is thereby limited then within fourteen 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.

Order 7 Rule 11 mentions cases in which the plaint shall be rejected. Clause (b) thereof says that where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so, the plaint shall be rejected. Similarly Clause (c) lays down that the plaint shall be rejected 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, fails to do so. There are various other provisions in the Code prescribing or allowing the doing of an act for which time is fixed or granted by the Court. In all such cases, the Court has powers under Section 148 of the Code to enlarge the time, even after expiration of the period originally fixed.

3. The time granted by the Court for payment of costs, while setting aside an ex-parte decree, as a condition precedent thereto, is not an act prescribed or allowed by the Code. Though the Court fixes or grants time for payment of the costs, it is not for doing an act prescribed or allowed by the Code. Section 148 of the Code has no application to such a case. Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882 is a case relating to payment of court-fees. That is an act prescribed or allowed by the Code. That case has, therefore, no application to the facts of the present case regarding the applicability of Section 148 of the Code. The learned Trial Court was correct in saying that Section 148 had no application.

4. The next question for consideration is whether Section 151 of the Code can be invoked in the facts and circumstances of this case. It has been pronounced in Manohar Lal Chopra v. Seth Hiralal AIR 1962 SC 527 that the inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the Legislature. The inherent powers are, however, to be exercised by the Court in very exceptional circumstances and such an order is not to be made unless absolutely essential for the ends of justice.

In L. P. Jain v. Nandakumar, Rule Taliwalla AIR 1961 Bom. 254 it was held that Section 151 of the Code could be invoked in a case where the Court directed payment of costs as a condition precedent to setting aside the ex parte decree. Even in AIR 1961 SC 882, which was directly a case under Section 148, their Lordships held that Section 151 could also be invoked. There is nothing in Section 148 which would conflict with the exercise of powers under Section 151 in the facts and circumstances of this case. The trial court did not at all advert to exercise of its powers under Section 151 of the Code. It failed to exercise jurisdiction vested in it and its order is liable to be interfered with under Section 115(1)(b) of the Code.

5. The next question for consideration is whether the petitioner showed sufficient cause for non-payment of the costs within the prescribed time. The learned Munsif did not apply his mind to the factual aspect of the case as he was of opinion that he had no power to extend time.

The case would have been remanded to him for determination of the question whether the petitioner had sufficient cause for non-payment of costs within the time granted by the Court. Mr. M. M. Das, however, very fairly submitted that this being a petty matter, it need not be remanded and the costs, originally directed by the trial Court, might be paid to the plaintiff and that the ex-parte decree might be set aside. In view of this concession, the order passed by the trial court is set aside subject to the condition that the petitioner would pay to Nidhi Sahu (opposite party-1) not only Rs. 15/-, as directed, but also a consolidated amount of Rs. 50/- more (in all Rs. 65) towards the costs and hearing-fee of the Civil Revision within three weeks from to-day, failing which the Civil Revision would stand dismissed without further reference to the Bench. In the result, the Civil Revision is allowed subject to the aforesaid conditions.


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