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Jyotish Chandra Sen Vs. Rukmini Ballav Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 3231 of 1957
Judge
Reported inAIR1959Cal35,62CWN588
ActsCode of Civil Procedure (CPC) , 1908 - Section 148 - Order 8, Rule 9
AppellantJyotish Chandra Sen
RespondentRukmini Ballav Sen and ors.
Appellant AdvocateAbinash Chandra Bhattacharyya, Adv.
Respondent AdvocateSusil Kumar Biswas, Adv. for Opposite Party No. 6
Excerpt:
- .....payment of certain to is which had been made the condition precedent for acceptance of additional written statement. it appears that on 22-4-1957 the court ordered that :'the additional written statement filed by pro forma defendant no. 7 will be accepted so far as paras 2 and 5 are concerned provided defendant no. 7 pays a cost of rs. 16/- to the plaintiff by 16-5-1957. in default of payment of costs the additional written statement will stand rejected.'costs were not paid by 16-5-1957 but on that date an application was made praying for extension of the time. the application, however, wa not moved on that date but was moved and heard in presence of the parties' lawyers later on. on 5-7-1957, the court passed an order, in spite of the objection of the plaintiff, extending the time for.....
Judgment:
ORDER

1. This Rule is directed against an order of the learned Subordinate Judge, 24-Parganas, extending, in modification of a previous order, time for payment of certain to is which had been made the condition precedent for acceptance of additional written statement. It appears that on 22-4-1957 the court ordered that :

'the additional written statement filed by pro forma defendant No. 7 will be accepted so far as paras 2 and 5 are concerned provided defendant No. 7 pays a cost of Rs. 16/- to the plaintiff by 16-5-1957. In default of payment of costs the additional written statement will stand rejected.'

Costs were not paid by 16-5-1957 but on that date an application was made praying for extension of the time. The application, however, wa not moved on that date but was moved and heard in presence of the parties' lawyers later on. On 5-7-1957, the court passed an order, in spite of the objection of the plaintiff, extending the time for payment of the costs to 11-7-1957. Costs were paid before that date and the additional written statement filed by the pro forma defendant was accepted.

2. The present Rule was obtained against the order of the court dated 5-7-1957 extending time. There has been some difference of opinion on the question whether in cases where Section 148 of the Code of Civil Procedure is not applicable a court has jurisdiction to extend the time by which an amount is directed to be paid or something is directed to be done, if when giving the direction the court also stated that in default of compliance the suit or the application would stand dismissed. It is not necessary, however, to consider that question here as, in our opinion, the provisions of Section 148 of the Code of Civil Procedure apply to the facts of this case. As has been pointed out by Mr. Bi was on behalf of the opposite party, Order VIII, Rule 9 of the Code of Civil Procedure provides that an additional written statement may be accepted by the leave of the court on such terms as the court may think fit. Where one of the terms is that certain amount should be paid within a fixed time that, in our opinion, is an act allowed by the Code and when a period is fixed by the court for the doing of that act, Section 148 in terms applies. It is then open to the court to enlarge this period even though the period originally fixed or granted might have expired. In our judgment the fact that there was a default clause that if the payment be not made the application will stand dismissed does not take away from the fullness of the court's power to enlarge the time under Section 148 of the Code of Civil Procedure. We are unable, therefore, to accept the contention that the learned Subordinate Judge acted without jurisdiction in extending the time.

3. The Rule is, accordingly, discharged with costs, hearing fee being assessed at two gold mohurs.


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