Mahanth Ram Das Vs. Ganga Das [1961] INSC
38 (7 February 1961)
HIDAYATULLAH, M.
KAPUR, J.L.
SHAH, J.C.
CITATION: 1961 AIR 882 1961 SCR (3) 763
CITATOR INFO :
R 1978 SC 335 (13) MV 1982 SC 137 (14) RF
1986 SC2166 (10) R 1989 SC2073 (21)
ACT:
Court fee--Appeal to stand dismissed if court
fee not paid Within time granted--Extension time, if can be granted--Code of
Civil Procedure, 1908 (V of 1908), ss. 148, 149, 151, 0. 47, r. 1.
HEADNOTE:
The High Court passed a peremptory order that
" the appeal will stand dismissed " if a certain amount of court fee
was not paid within the time granted by the court. The appellant being unable
to find money made an application for extension of time before the expiry of
the time granted, and offering to make a partial payment asked for further
time, The application was (1) [1960] A.C. 336.
98 764 heard after the expiry of the time and
was dismissed on the ground that the appeal had already " stood dismissed
" owing to non-payment within the time allowed. The appellant's
applications under s. 151 and 0. 47, r. 1 of the Code of Civil Procedure were
also dismissed on the same ground although the court expressed sympathy for the
appellant. On appeal with a certificate of High Court:
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 but they do
not completely estop a court from taking note of events and circumstances which
happen within the time fixed and time should have been extended in the
circumstances of the case and the court was not powerless to deal with events
happening after the peremptory order.
Lachmi Narain Marwari v. Balmakund Marwari
(1925) I.L.R. 4 Pat. 61 (P.C.), referred to.
Section 148 of the Code of Civil Procedure,
in terms, allows extension of time, even if the original period fixed expired
and S. 149 is equally liberal; the High Court had ample power to apply those
sections and to exercise its inherent powers under S. 151 in order to do
justice to a litigant for whom it had expressed considerable sympathy.
Latham v. Johnson [1913] 1 K.B. 398, referred
to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 432 of 1957.
Appeal from the judgment and order dated
September 27, 1955, of the Patna High Court in Civil Revision No. 24 of 1954.
R. C. Prasad, for the appellant.
The respondent did not appear.
1961. February 7. The Judgment of the Court
was delivered by HIDAYATULLAH, J.-The appellant who was plaintiff in a title
suit in the Court of the Subordinate Judge 11, Gaya, has appealed against the
dismissal of his suit by the High Court at Patna, with a certificate from that
Court. In the suit he had asked for a declaration that he was nominated Mahant
of Moghal Juan Sangat by his Guru, Mahanth Gulab Das, by a registered deed
dated October 21, 1944, and that he had thus the right to manage the Sangat and
other off-shoots thereof.
His suit was dismissed by the trial Judge on
May 31, 1947.
He then appealed to the High Court at Patna,
and on November 26, 1951, the appeal was decided in 765 his favour on condition
that he paid court fee on the amended relief of possession of properties
involved in the suit, for which purpose the case was sent to the Court of First
Instance for determining the value of the properties and for fixed the amount
of court fee to be paid. After the report from the Subordinate Judge was
received, the case was placed for final orders before the High Court. V. Ramaswami,
J. and C. P. Sinha, J. (as they then were) held that the valuation for the
purpose of the suit was Rs. 12,178-4-0, and that ad valorem court fee was
payable on it.
They, therefore, made a direction as follows:
" The High Court office will calculate
the amount of court fee payable on the valuation we have given and communicate
to the counsel for plaintiff-appellant what is the amount of the court-fee he
has got to pay both on the plaint and on the memorandum of appeal. We grant the
plaintiff three months' time to pay the court-fee for the Trial Court and also
for the High Court. The time will be computed from the date counsel for
appellant is informed of the calculation by the Deputy Registrar of the High
Court. If the amount is not paid within the time given, the appeal will stand
dismissed. If the court fee is paid within the time given, the appeal will be
allowed with costs and the suit brought by the plaintiff will stand decreed
with costs and the plaintiff will be granted a decree declaring........
The office of the High Court gave intimation
on April 8, 1954, that the deficit court fee payable was Rs. 1,987-8-0.
The time was to expire on July 8, 1954; but
the appellant was not able to find the money. It appears that the appellant's
advocate in the High Court asked the case to be mentioned before the Vacation
Judge on July 8, 1954, so that a request for extension of time could be made.
No Division Bench, however, was sitting on that date, and the appellant filed
an application on July 8, 1954, requesting that he be allowed to pay Rs. 1,400
immediately, and the balance, within a month thereafter. This application was
placed before a Division Bench consisting of Ramaswami and Ahmad, JJ., when the
following order was passed:
766 " This application for extension of
time must be dismissed. By virtue of the order of the Bench dated the 30th
March, 1954, the appeal has already stood dismissed as the amount was not paid
within the time given." The appellant then moved an application under s.
151, which was rejected by Imam, C.J. and Narayan, J., on September 2, 1954.
They, however, felt that the proper remedy was review. The appellant then filed
another petition under s. 151, read with 0. 47, R. 1 of the Code of Civil
Procedure, setting out the reasons why he was unable to find the money.
He stated that he was seriously ill, and
though he had attempted to raise a loan, he was unable to get sufficient money,
as the grain market had slumped suddenly, and people were unable to advance
money. He offered to pay the deficit court fee within such further time as the
High Court might fix.
This application for review was heard on
September 27, 1955, by Ramaswami and Sinha, JJ. They first considered it from
the viewpoint of 0. 47, R. 1 of the Code of Civil Procedure, and held that the
application did not fall within the Order.
The argument of counsel that time could have
been extended under s. 148 or s. 149 of the Code of Civil Procedure was also
not accepted. The learned Judges held that these sections applied only to cases
which were not finally disposed of, and that time under them could be extended
only before the final order was actually made. The request to extend the time
under the inherent powers of the Court was also rejected for the same reason.
Ramaswami, J., concluded his order by saying:
" I have considerable sympathy towards
the plaintiff petitioner who has placed himself in an unfortunate position, but
we must be careful not to allow our sympathy to affect our judgment. To quote
the language of Farwell, J. in another context I sentiment is a dangerous will
other wise to take as a guide in the search for legal principles (Latham v. Johnson
(1))." (1) [1913] 1 K. B. 398.
767 in the result, the petition was
dismissed, but without costs.
The appellant then moved the High Court for a
certificate, and the case was heard by K. K. Banerji and R. K. Chaudhary, JJ.
Though the decree was one of affirmance, the learned Judges fortunately found
it possible to grant a certificate, and the present appeal has been filed.
The case is an unfortunate and unusual one.
The application for extension of time was made before the time fixed by the
High Court for payment of deficit court fee had actually run out. That
application appears not to have been considered at all, in view of the
peremptory order which had been passed earlier by the Division Bench hearing
the appeal, mainly because on the date of the hearing of the petition for
extension of time, the period had expired: The short question is whether the
High Court, in the circumstances of the case, was powerless to enlarge the
time, even though it had peremptorily fixed the period for payment. 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 s. 149 is equally liberal. A fortiori,
those sections could be invoked by the applicant, when the time had not
actually expired. That the application was filed in the vacation when a
Division Bench was not sitting should have been considered in dealing with it
even on July 13, 1954, when it was actually heard. The order, though passed
after the expiry of the time fixed by the original judgment, would have
operated from July 8, 1954. How undesirable it is to fix time peremptorily for
a future happening which leaves the Court powerless to deal with events that
might arise in between, it is not necessary to decide in this appeal. These
orders turn out, often enough to be inexpedient. Such procedural orders, though
peremptory (conditional decrees apart) are, in essence, in terrorem, so that
dilatory litigants might 768 put themselves in order and avoid delay. They do
not, ,however, completely estop a Court from taking note of events and
circumstances which happen within the time fixed.
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 on the day previous, he could not
ask for extension of time, or that the Court was powerless to extend it. Such
orders are not like the law of the Medes and the Persians. Cases are known in
which Courts have moulded their practice to meet a situation such as this and
to have restored a suit or proceeding even though a final order had been
passed. We need cite only one such case, and that is Lachmi Narain Marwari v.
Balmakund Marwari (1). No doubt, as observed by Lord Phillimore, we do not wish
to place an impediment in the way of Courts in enforcing prompt obedience and
avoidance of delay, any more than did the Privy Council.
But we are of opinion that in this case the
Court could have exercised its powers first on July 13, 1954, when the petition
filed within time was before it, and again under the exercise of its inherent
powers, when the two petitions under s. 151 of the Code of Civil Procedure were
filed. If the High Court had felt disposed to take action on any of these
occasions ss. 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.
In our opinion, the High Court was in error
on both the occasions. Time should have been extended on July 13, 1954, if
sufficient cause was made out and again, when the petitions were made for the
exercise of the inherent powers.
We, therefore, set aside the order of July
13, 1954, and the orders made subsequently. We need not send the, case back for
the trial of the petition made on July 8, 1954, because that would be only
productive of more delay. None has appeared to contest the appeal in this Court.
We have perused the application and the affidavit, and we are satisfied that
sufficient cause had been made out for (1) (1925) I.L.R. 4 Patna 61 (P.C.).
769 extension of time. We, accordingly, set
aside the dismissal of the appeal and the suit, and grant the appellant two
months' time from today for payment of the deficit court fee. We only hope
that, after the lesson which the appellant has learnt, he will not ask the
Court perhaps vainly, to show him any more indulgence. There will be no order
about costs in this Court as the appeal was heard ex parte.
Appeal allowed.
Back
