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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • K.C Agarwal
  • Y.K. S. Choudhary; R.S. Singh; R.N. Singh; Sankatha Rai
  • Kesho Pd. Singh and Brij Nandanlal Katiyar
Judges
  • G.C Mathur
  • A.K Kirty
  • R.B Misra, JJ.
Acts
  • Sections 148 and 149 of the Code of Civil Procedure.
  • Section 151 and Order XLVII, Rule 1. Civil P. C.,
  • Section 151 of the Code of Civil Procedure
  • Section 148 of the Code of Civil Procedure.
  • Sections 148. 149 or 151 Civil P. C.
  • Section 151 of the Code of Civil
  • Section 151. Civil P. C.
  • Section 148. Civil P. C.
  • Order XLVII. Rule 1
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • K.C Agarwal
  • Y.K. S. Choudhary; R.S. Singh; R.N. Singh; Sankatha Rai
  • Kesho Pd. Singh and Brij Nandanlal Katiyar
Judges
  • G.C Mathur
  • A.K Kirty
  • R.B Misra, JJ.
Acts
  • Sections 148 and 149 of the Code of Civil Procedure.
  • Section 151 and Order XLVII, Rule 1. Civil P. C.,
  • Section 151 of the Code of Civil Procedure
  • Section 148 of the Code of Civil Procedure.
  • Sections 148. 149 or 151 Civil P. C.
  • Section 151 of the Code of Civil
  • Section 151. Civil P. C.
  • Section 148. Civil P. C.
  • Order XLVII. Rule 1
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The suit giving rise to this revision was filed on July 4, 1966 in the court of the Munsif, Mirzapur. Amendments to the plaint were allowed by order dated April 11, 1967, after which the Munsarim reported a deficiency in court-fees of Rs. 249.50 on August 4, 1967. The deficiency was not rectified within the time allowed, and on October 4, 1967 the plaint was rejected as insufficiently stamped.

The applicant applied for restoration on October 19, 1967; that restoration application was allowed by the Munsif on December 7, 1968 on the condition that the applicant pay Rs. 6 as costs and the entire court-fee by December 11, 1968, the operative language being: "I allow the application and restore the plaint on payment of Rs. 6/- as costs and payment of entire court-fee by 11-12-1968. In case of any default, the application shall stand rejected."

The record shows that the deficiency in court-fees was made good on December 11, 1968 (possibly after an order was made consigning the record on that date). The Rs. 6/- in costs was actually deposited by tender on December 12, 1968. On learning of the consigning order, the applicant filed an application on December 17, 1968 under Section 151 CPC to set aside the consigning order and proceed with the suit. The Munsif treated this as an application for extension of time and rejected it on September 2, 1969, holding that because the earlier restoration application stood rejected on December 11, 1968 the court had no power to extend time or to pass any further order restoring the plaint; the Munsif relied on the Division Bench decision in Gaya Din v. Lalta Prasad, AIR 1936 All 477. This rejection is the subject of the present revision.

Legal Issues Presented

  1. Whether the Division Bench decision in Gaya Din v. Lalta Prasad, AIR 1936 All 477, which held that after expiry of the time fixed in an order the application stands dismissed and the court ceases to be seized (functus officio), remains good law in the light of the Supreme Court's decision in Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882.
  2. Whether a court (including a Munsif or a High Court) has jurisdiction under Sections 148 and 149 CPC, and under its inherent powers (Section 151 CPC), to extend time for doing an act even after the period fixed by a peremptory order has expired, including where the order provides that the application/suit/appeal "shall stand dismissed" on default.
  3. Whether, on the facts of this case, the Munsif erred in refusing to extend time and in consigning the record when the applicant had, according to the applicant's affidavit, caused the court-fees and costs to be deposited (with an inadvertent delay in payment of costs by the applicant's clerk).

Arguments of the Parties

Applicant's Arguments

  • The applicant (through learned counsel) contended that the Division Bench decision in AIR 1936 All 477 is no longer good law in view of the Supreme Court's decision in Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882.
  • In the application filed December 17, 1968 (and the supporting affidavit) the applicant stated that the entire amount of court-fees and the costs had been deposited with the clerk of his lawyer; the clerk deposited the court-fees but inadvertently failed to pay the costs to counsel for the opposite party. The clerk attempted to pay the costs on December 12 but was refused; the costs were deposited in court on that date.

Opposite Party's Arguments / Objections

  • The opposite party admitted that costs were offered to be paid to their counsel on December 12 and that the counsel refused to accept them.
  • The opposite party asserted that the applicant had deliberately not paid the amount of costs to harass the opposite party and alleged that the payment was attempted by the applicant's lawyer's clerk himself to avoid loss to the applicant.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Gaya Din v. Lalta Prasad, AIR 1936 All 477 The Division Bench held that when time fixed in an order expires the application stands dismissed, the court ceases to be seized of the matter (becomes functus officio), and therefore cannot grant extension of time under Section 148 CPC. The Munsif relied on this decision to refuse extension of time; the present court held that this decision is directly opposed to the Supreme Court's later view and is no longer good law.
Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882 The Supreme Court held that Sections 148 and 149 allow enlargement of time even after the original period has expired; peremptory orders providing for automatic dismissal do not completely oust the court's power to take note of events and extend time in appropriate cases; the court may also act under inherent power (Section 151) and extend time. The present court relied on this decision as authoritative, adopting the Supreme Court's view that courts retain power to extend time even after expiry of a peremptory period, and used it to displace the earlier All-India Division Bench view.
Mohaa Lal v. Ladli Prasad, AIR 1971 All 519 Interpreted the Supreme Court decision to the effect that where an application for extension was made before the fixed time ran out, an order passed later would be deemed to take effect from the date of that earlier application. Noted by the court as one of several post-Supreme Court decisions that interpreted AIR 1961 SC 882; the present court commented on this interpretation but did not adopt a restrictive reading limited only to applications made before expiry.
Usha Sales (P) Ltd. v. Basdeo Narain Singh (Civil Revision No. 606 of 1967, All) Distinguished the Supreme Court decision on the ground that the application for extension there was made before the time fixed had run out, implying the court's remarks were in that context. The present court recorded this distinction but rejected the restrictive reading that extension power is limited only to applications made before expiry, finding that the Supreme Court had also recognised extension power on applications made after expiry.
Tarapada Sarkar v. Nepal Gazi, AIR 1965 Cal 354 Stated that the Supreme Court held jurisdiction to extend time on an application filed before the time fixed and also in exercise of inherent power under Section 151 CPC. The present court cited this as one of the cases that interpreted the Supreme Court decision; it disagreed with the narrower interpretation that limits extension power to applications made before expiry.
Bokaro and Ramgur Ltd. v. State of Bihar, AIR 1965 Cal 308 Interpreted AIR 1961 SC 882 to mean that when an order requires payment of deficit court-fees with a provision that non-payment will cause dismissal, courts may allow extension of time even after the original period has expired if sufficient cause is shown. The present court approved this interpretation as correctly reflecting the Supreme Court's decision and cited it as consistent with the conclusion that Gaya Din is no longer good law.

Court's Reasoning and Analysis

The court framed the central conflict as between the Division Bench decision in Gaya Din (AIR 1936 All 477), which held that a peremptory order that causes automatic dismissal on non-compliance leaves the court functus officio and unable to grant an extension, and the Supreme Court decision in Mahanth Ram Das (AIR 1961 SC 882), which held that Sections 148 and 149 permit enlargement of time even after expiry and that peremptory orders do not completely oust the court's jurisdiction.

The court reviewed Gaya Din: there the Division Bench held that when the time fixed in an order expired the application stood dismissed and the court no longer remained seized of the matter, so Section 148 could not be applied. The Division Bench considered that the peremptory/dismissal clause rendered the court functus officio.

The court then examined Mahanth Ram Das. It noted that the Supreme Court explicitly asked "Whether the High Court was powerless to enlarge the time even though it had peremptorily fixed the period for payment?" and answered that Sections 148 and 149 allow extension even after the original period expired. The Supreme Court observed that peremptory orders are "in terrorem" but "do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed." The Supreme Court further stated that even on applications under Section 151 filed after expiry, the High Court could have extended the time under Sections 148 and 149.

The present court considered later authorities that had read the Supreme Court decision narrowly (suggesting extension power applies only where an application was made before expiry), but found those readings incorrect because they overlooked the Supreme Court's express statement that extension under Sections 148 and 149 could be exercised even when Section 151 applications were filed after the expiry. The court approved the Calcutta Division Bench's interpretation in Bokaro and Ramgur Ltd. as a correct exposition of AIR 1961 SC 882.

Concluding the doctrinal analysis, the court held that the Division Bench decision in AIR 1936 All 477 is no longer good law. The court emphasized that it is not the timing of the application (before or after expiry) that confers jurisdiction: the court possesses jurisdiction under Section 148 CPC to enlarge time, and an application merely invokes that jurisdiction.

Applying these principles to the facts, the court examined the applicant's affidavit and the opposite party's objections. The applicant's explanation was that the clerk had deposited the court-fees and had inadvertently failed to remit the Rs. 6 to the opposite party's counsel on December 11; on December 12 the clerk attempted payment but the counsel refused and the amount was then deposited in court. The opposite party's contention that non-payment was deliberate was not accepted by the court in view of the applicant's deposit of about Rs. 250 towards the deficiency and the small sum of Rs. 6 involved.

The court determined that the Munsif was in error in dismissing the application solely because the order had been peremptory and because the application for extension was made after expiry. Given the applicant's credible explanation and the legal power to extend time, the court concluded that the application for extension should have been allowed.

Holding and Implications

Holding: The court ALLOWED THE REVISION and granted the relief prayed in the revision: the application for extension of time is allowed and the amount of costs will be deemed to have been deposited within the extended time; the order of the Munsif consigning the records is set aside; the earlier order dated December 7, 1968 allowing restoration of the plaint shall stand; and the Munsif will proceed with the suit in accordance with law. The revision was allowed with costs.

Implications:

  • The court held that the Division Bench decision in Gaya Din v. Lalta Prasad (AIR 1936 All 477) is no longer good law in the face of Mahanth Ram Das v. Ganga Das (AIR 1961 SC 882).
  • The legal consequence is that courts have jurisdiction under Section 148 CPC (and, where appropriate, under Sections 149 and the court's inherent power in Section 151 CPC) to enlarge time for doing an act even after the time originally fixed has expired, including where a peremptory order provides for automatic dismissal upon non-compliance, provided sufficient cause is shown.
  • On the present facts, the direct effect for the parties is restoration of the plaint, deemed payment of costs within extended time, and remand to the Munsif to proceed with the suit. The opinion states that no further remand was necessary for deciding whether extension should be granted because the applicant's explanations were accepted and extension was ordered.

This summary is confined to the information expressly stated in the provided opinion and does not add, infer, or assume facts or reasoning beyond the text.

Show full summary ...

    Gobardhan Singh v. Barsati

    1. This revision has been referred to this Bench for consideration of the question whether the decision of a Division Bench of this Court In Gaya Din v. Lalta Prasad. AIR 1936 All 477 is still good law. Doubts have been cast on the correctness of this decision on account of the decision of the Supreme Court in Mahanth Ram Das v, Ganga Das, AIR 1961 SC 882.

    2. Since the entire revision has been referred for decision, it is necessary to set out the relevant facts. The suit, out of which this revision arises, was filed on July 4. 1966. by the applicant in the court of the Munsif. Mirzapur. Some amendments in the plaint were allowed by the Munsif by his order dated April 11, 1967. Consequent to the^e amendments, there was a deficiency in the court-fees by Rs. 249.50 as reported by the Munsarim on August 4, 1967. The deficiency in court-fees was not made good within the time allowed and on October 4. 1967, the plaint was rejected as insufficiently stamped. On October 19, 1967. the applicant made an application for restoration and on December 7, 1968, the application was allo.vt'd. The -,pera-tive portion of the order of the Munsif reads:

    "I allow the application and restore the plaint on payment of Rs. 6/- as costs and payment of entire court-fee by 11-12-1968. In case of any default, the application shall stand rejected."

    It appears that the matter was put up before the Munsif on December 11, 1968. on which date he passed an order for consigning the record. From the record of the case it appears that the deficiency in court-fees was made good on December 11. 1968, possibly, after the order consigning the record had been made. The amount of Rs. 6/-, which had been ordered to be paid as costs, was actually deposited by tender in the court on December 12. 1968. When the applicant came to know of the order about consigning the record, he made an application on December 17, 1968. under Section 151 of the Code of Civil Procedure praying that the order of December 11 1968. consigning the record be set aside and the suit be proceeded with. This application was treated as an application for extension of time. This application was rejected by the Munsif on Sept. 2, 1969. on the ground that, since the earlier application for restoration stood rejected on December 11. 1968. the court had no power either to extend the period or to pass any further order restoring the plaint. The Munsif relied upon the decision of this Court in AIR 1936 All 477 (supra). It may here be mentioned that, though this order states that the applicant did not pay the necessary court-fees on December 11, 1968, there is no dispute that the court-fees had, in fact, been paid on that date. It is this order of the Munsif which is challenged in this revi-sion.

    3. The question, which arises in the case, is whether the Munsii could, after the expiry of the period for paying costs, extend time therefor. As already stated above, the Munsif. in holding that he could not extend the time, followed the decision of a Division Bench of this Court in AIR 1936 All 477 (supra). It is contended by learned counsel for the applicant that this decision is no longer Hood law as the Supreme Court has. in Mahanth Ram Das's case. AIR 1961 SC 882 taken a contrary view.

    4. In Gaya Din's case. AIR 1936 All 477 the suit, which had been dismissed for default, was restored on the application of the plaintiff on the condition that he paid Rs. 8/- for costs to the defendant on or before 27-10-1934. In case of default, the application was to stand dismissed. Rs. 4/- were paid on 15-9-1934 but the balance was not paid upto 27-10-1934. On 29-10-1934 the plaintiff made an application for permission to pay the balance and for a direction to the defendant to receive it- The Munsif dismissed the application on the around that he had no power to extend the time. In the revision before this Court, the plaintiff contended that the time should have been extended under Section 148 of the Code of Civil Procedure. This section provides:--

    "Where any period is fixed or srant-ed by the Court for the doing of any act prescribed or allowed bv 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 Division Bench, which heard the revision, held that, on the expiry of the time fixed in the order, the application stood dismissed, the court no longer remained seized of the application and could not grant any extension of time. It observed:--

    "The application of Section 148. Civil P. C., depends on the question whether the matter has been finallv disposed of by the Court and the Court is seized of the matter and has control over it or not. If the order is not final and the Court retains its control over and is seized of the matter, it has full power to make any just and necessary order therein, including in appropriate cases the extension of time and Section 148. Civil P. C. can be applied. On the other hand, if the effect of the order is that in the event of non-compliance it operates, automatically and without further intervention of the Court, the section cannot be applied for the obvious reason that the Court ceases to be seized of the matter and becomes functus officio"
    .

    The view of the Division Bench was that but for that part of the order which provided lor the automatic dismissal of the application in default of payment within time, time could have been extended even after its expiry.

    5. Now let us examine the decision of the Supreme Court. In this case. the appeal of the plaintiff against the dismissal of his suit was allowed bv the High Court of Patna on the condition that he paid court-fees on the amended relief of possession. It was provided that If the court-fee was not paid within the time given, the appeal would stand dismissed. The amount of court-fees, which the plaintiff was required to pay. was Rs. 1987/8/- and the time for payment was to expire on 8-7-1954. The plaintiff, on 8-7-1954. made an application to the High Court, requesting that he be allowed to pay Rs. 1,400/- immediately and the balance within one month. This application was dismissed on 13-7-1954 on the ground that the appeal already stood dismissed as the amount was not paid within the time given. The plaintiff then moved an application under Section 151. Civil P. C. which was rejected on 2-9-1954. He then filed a third application under Section 151 and Order XLVII, Rule 1. Civil P. C., setting out the reasons why he was unable to find money and offering to pav the court-fees within such further time as the High Court might fix. This application was also rejected. The High Court held that Order XLVII. Rule 1 was not applicable and that time could not be extended under Sections 148. 149 or 151. Civil P. C. as these sections apply only to cases which. were not finallv disposed of. As a result of these orders, the appeal of the plaintiff stood dismissed. On appeal to the Supreme Court, it was held that the High Court had power to extend time and should have done so. Considering first the application dated 8-7-1954. the Supreme Court posed the question:

    "Whether the High Court was powerless to enlarge the time even though it had peremptorily fixed the period for payment?"
    It then observed that both Sections 148 and 149 allowed extension of time even though the original period fixed had expired. With respect to the peremptory nature of the original order, it said :--

    "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 out 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"
    .

    These observations clearly show that the peremptory nature of the order did not make the Court powerless, in suitable cases, to enlarge the time even after the expiry of the period fixed. This is made further clear by the following words of the Supreme Court which contain its actual decision in the case :--

    "But we are of opinion that in this case the Court could have exercised its power first on July 13, 1954. when the petition filed within tune was before it. and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code of Civil Procedure were filed. If the High Court had felt disposed to take action on any of these occasions. Sections 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".

    What is important to note is that, even with respect to the applications under Section 151. Civil P. C. which were filed after the expiry of the period fixed bv the order, the Supreme Court has said that the High Court could have, on those applications, extended the tune under Sections 148 and 149 of the Code of Civil procedure.

    6. Thus the view, which the Supreme Court has taken is this: The Court has power under Section 148. Civil P. C. to extend the time for doing an act even after the time given has expired: a peremptory order providing for the automatic dismissal of the application or appeal or suit on failure to do the act within the time fixed does not take awav the power and jurisdiction of the Court to extend the time in appropriate cases: such peremptory orders are made "in ter-rorem" in order that dilatory litigants might avoid negligence and delay. The view taken bv the Division Bench of this Court in AIR 1936 All 477 (supra) is directly opposed to the view now taken bv the Supreme Court.

    7. Three decisions have been brought to our notice which have interpreted the Supreme 'Court's decision in AIR 1961 SC 882 (supra) differently. In Mohaa Lal v. Ladli Prasad, AIR 1971 All 519. Jagmohan Lal. J.. referring to the Supreme Caurt decision, observed:

    "On those facts it was held that even after the original time had run out. the Court was not powerless to extend the time on the basis of the application that had been made prior to the fixed time running out and that in such a case the order so passed would be deemed to take effect from the date on which the appli-cation had been made for further extension of time"
    .

    In the Usha Sales fP) Ltd. v. Basdeo Narain Singh, (Civil Revn. No. 606 of 1967 decided on 26-4-1968 (All). Trivedi. J., distinguished the decision of the Supreme Court thus :--

    "In that case, the application for extension of time was made before the time fixed had run out and it was in that context that their Lordships of the Supreme Court remarked that where an application for extension of time has been made before the time fixed had run out the Court was competent to extend the period for payment even though the order may be passed after the expiry of the time fixed"
    .

    In Tarapada Sarkar v. Nepal Gazi AIR 1965 Cal 354 a learned Single Judge of the Calcutta High Court said regarding the decision of the Supreme Court: --

    "The Supreme Court held that in such a case the High Court had Iurisdiction to extend time on the application which had been filed before the time fixed bv the High Court for payment of deficit Court-fee and also in the exercise of the inherent power of the Court under Section 151 of the Code of Civil Procedure"
    .

    The cases interpret the Supreme Court, decision as laying down that the power to extend time under Sections 148. 149 or 151 Civil P. C. can only be exercised upon and application made before the expiry of the time and not upon an application made after the expiry of the time. With great respect to the learned Judges who decided these cases, we think that this is not a, correct reading of the decision of the Supreme Court. It appears to us that their attention was not drawn to the passage in the Judgment of the Supreme Court quoted above in which it has been clearly stated that, even on the applications filed under Section 151 Civil P. C. which were filed after the expiry of the period fixed, the High Court had ample power under Sections 148 and 149 of the Code of Civil procedure to extend the time. A Division Bench of the Calcutta High Court, in Bokaro and Ramgur Ltd. v. State of Bihar AIR 1965 Cal 308 has correctly interpreted the Supreme Court decision thus:--

    "Where an order is made for payment of deficit court fees accompanied bv the further order that if the deficit court fee be not paid, within the tune allowed, the suit or the appeal would stand dismissed. In such a case, if sufficient cause in explanation of the default, be made out, Courts may allow extension of time even after the period originally fixed has expired. (Vide AIR 1961 SC 882)"
    .

    In our opinion, in view of the decision of the Supreme Court. the decision of the Division Bench of this Court in AIR 1936 All 477 (supra) is no longer good law. Even in cases where an order is made by the Court for doing a thing within a particular time and the order further provides that the application, suit or appeal shall stand dismissed if the thing is not done within the time fixed, the Court has jurisdiction, if sufficient cause is made out to extend the time even when the application for extension of time is made after the expiry of the time fixed. It is not the application for grant of further time, whether made before or after the expiry of the time granted, which confers iurisdiction on the Court. The Court possesses the jurisdiction under Section 148 Civil P. C. to enlarge the time and the application merely invokes that jurisdiction.

    8. In the case before us. the Munsif has dismissed the application for extension of time only on the ground that there was a peremptory order providing that the application shall stand rejected in case the amounts were not paid bv 11-12-1968 and that the application for extension of time was made after the time had expired. The Munsif was in error in dismissing the application on this ground. It is not necessary to remand the case for deciding whether the extension of time should be granted or not. In the application filed bv the applicant on December 17. 1968. and the affidavit filed in support thereof. It is stated that the applicant had deposited the entire amount of court-fees and costs with the clerk of his lawyer and that the clerk bad deposited the court-fees but he. by inadvertence failed to pay the costs to the counsel for the opposite-party. It further appears therefrom that on the vary next date, i. e. December 12. the clerk of the applicant's lawyer attempted to pay the amount of costs to the lawyer for the opposite-party but he refused to accept the same. The amount of costs was deposited in court on that very date. In the objections filed by the opposite-party to this application, the fact is admitted that costs were offered to be paid to the opposite-party's counsel on December 12 and that he refused to take the same. But It is asserted that the applicant had deliberately not paid the amount of costs only to harass the opposite-party and that the costs were sought to be paid by the applicant's lawyer's clerk himself to avoid loss to the applicant. Considering the fact that the applicant had deposited about Rs. 250/- towards the deficiency in court-fees, we are not prepared to believe that he would deliberately not pay Rs. 6/-towards costs. We are satisfied that the explanation of the applicant is correct and that he had paid the amount of costs to his lawyer's clerk and the clerk forgot to pay the same to the counsel for the opposite-partv on December 11 but tried to do so on December 12. In these circumstances, the application for extension of time should have been allowed.

    9. We accordingly allowed the revision with costs. The application for extension of time is allowed and the amount of costs will be deemed to have been deposited within the extended time. The order of the Munsif consigning the records is set aside. The order dated December 7. 1968. allowing the application for restoration of the plaint shall stand. The Munsif will proceed with the suit in accordance with law.

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    Comments

    Gobardhan Singh v. Barsati
    (Dec 16, 1971)