1. This petition is filed by the plaintiff in the suit against the order of the District Munsif of Pudukottai in I. A. No. 273 of 1970 declining to extend the time for payment of costs, which was confirmed by the appellate court in C. M. A. 10 of 1970.
2. The suit was dismissed for default and the plaintiff filed I. A. No. 273 of 1970 on 7-7-1970 for restoration of the suit. On 22-7-1970, the petition was allowed on condition that a sum of Rs. 2 to each of the defendant should be paid on or before 3-8-1970 failing which the petition was ordered to be dismissed and the I. A. to be posted on 4-8-1970, for final orders. The cost as directed was not paid on 3-8-1970 but was tendered only on 4-8-1970 along with a petition requesting the court to extent the time for one day. The Courts below held that the order has worked itself out and the condition not having been fulfilled the action was dead and, therefore, after that date there can be no application for extending the time. The Court was also of the view that it would have been different if the application was filed on the 3rd for extension of time.
3. Section 148 C. P. Code deals with the power of the court to grant time. The section runs 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 discretion from time to time enlarge such period, even though the period originally fixed or granted may have expired.'
The wording of the section allows extension of time even if the original period fixed is expired.
4. The question is whether, because of the default in fulfilling the condition, the order has worked itself out and, therefore, the Court had no power to extend that time. It has been held that when the effect of the order in the event of non-compliance has to operate automatically without further intervention of the Court. Section 148 cannot be applied as the Court ceases to be seized of the matter and becomes functus officio. This principle will apply when the suit is finally disposed of. If the order is not final and the Court retains control over it and seized of the matter, it will have power to make an appropriate order extending the time.
5. In Mahanth Ramadas v. Gangadas, : 3SCR763 the question of the powers of the Court to extend time under Sections 148, 149 and 151, C. P. Code was considered. A Bench of the High Court, while deciding an appeal in favor of the appellant, passed a peremptory order fixing the period for payment of the deficit Court-fee and the appellant made an application for extension of time before the time fixed had run out but the application came on for hearing before a Division Bench after the period had run out. The Supreme Court held that the High Court was not powerless to enlarge the time even though it has peremptorily fixed the period for payment. The Supreme Court observed that Section 148, in terms, allowed extension of time, even if the original period fixed had expired and Section 149 was equally liberal. The High Court, in its order, directed as follows--
'If the amount is not paid within the time given, the appeal will stand dismissed.'
If the theory of the Court becoming a functus officio is to be applied the High Court would not have had power to extend the time. But the Supreme Court held that Sections 148, 149 and 151, Civil P. C. clothe the High Court with ample power to do justice if sufficient cause is shown by the litigant.
6. The only circumstances in which this case was sought to be distinguished and which found acceptance by this Court in P. K. Sukumaram v. Sulaiman, : AIR1971Mad454 is that the Supreme Court was inclined to hold that the appellant should have the extension of time sought for by him, especially when he moved the Court for relief before the default clause operated. The Supreme Court considering the question whether the High Court, in the circumstances of the case was powerless to enlarge the time even though it had peremptorily fixed the date for payment, observed that if the Court had considered the application and rejected it on merits, other considerations might have arisen, but the High Court in the order quoted went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired and Section 149 is equally liberal. A fortiori, those sections could be invoked by the appellant when the time had not actually expired. They proceeded to observe that such procedural orders, though peremptory are in essence in terrorem, so that dilatory litigants might put themselves in order and avoid delay, and they do not, however, completely stop a Court from taking note of events and circumstances which happen within the time fixed. The above observations of the Supreme Court would show that the Court can grant time, taking note of the events and circumstances which happened within the time fixed. It is not stated that the petition should be filed within the time fixed. It proceeds to give an example and I quote :
'For example it cannot be said that if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time or that the Court was powerless to extend it.'
This would mean that it is not necessary that the extension of time should be asked for before the expiry of the period. It was also observed that the High Court could have exercised its inherent powers under Section 151. Civil P. C. for which petition was filed after the expiry of the time granted by the High Court.
7. In the circumstances of the case. I am satisfied that the Court has powers to extend the time. The delay being only one day the time ought to have been extended. The petitioner will be granted a week's time from the date of the records reaching the lower Court and the petitioner notified of it. The petition is allowed. There will be no order as to costs.
8. Petition allowed.