ORAL ORDER
1. This petition under Article 227 of the Constitution of India, assails the legality and correctness of an order dated 17.09.2012 passed below Exh.26, in Special Summary Suit No.932 of 2003, whereby 2ndAdditional Small Causes Court, Vadodara, extended time to deposit amount, to defend the suit, as the petitioner-defendant failed to comply the order dated 09.09.2011, granting leave to defend the suit with a condition to deposit Rs.50,000/- within one month from the date of order and also refused to pass a decree as provided under Order 37 Rule 3(6)(b) of the Code of Civil Procedure.
2. Petitioner-plaintiff filed a suit which was marked as Special Summary Suit No.932 of 2003 for a recovery of Rs.1,23,266/- along with the interest in terms of Order 37
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of the Code. Vide order dated 09.09.2011, leave to defend conditional was granted and defendant was directed to deposit Rs.50,000/- within one month. The time of one month was to expire on 08.10.2011. The respondent-defendant tendered a cheque of Rs.50,000/- within stipulated time and the same was returned unpaid on 04.05.2012. The respondent-defendant vide Exh.26, prayed that, he may be granted further extension to deposit the cash amount as due to unavoidable circumstances, he could not deposit the amount. Meanwhile, the petitioner-plaintiff vide Exh.27 dated 09.08.2012, applied before the Court below to pass judgment in terms of Order 37 Rule 3(6)(b) of the Code as the defendant, within stipulated time as fixed by the Court, was failed to deposit the amount. The learned Court below, vide its order dated 17.09.2012, extended the time and directed the defendant to deposit the amount of Rs.50,000/- before the Court and same was deposited by the defendant. The prayer for judgment was not acceded to. Being aggrieved by the order dated 17.09.2012 passed below Exh.26, the petitioner-plaintiff has come up before this Court by invoking supervisory jurisdiction of this Court.
3. Mr. Jamshed Kavina, learned counsel for the petitioner has submitted that, when the defendant was directed to deposit an amount of money as a condition precedent and he does not comply with the order, the Court below has no option but to pass a decree in terms of Order 37
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Rule 3(6)(b) of the Code. He has further submitted that, there is no statutory provision by which the Court below can extend the time and therefore, while extending the time limit, the Court below has exceeded its jurisdiction and has committed a manifest error which is apparent on the face of the record. Thus, therefore, he has submitted that, valid ground is made out for interference by this Court and the impugned order may be quashed and set aside.
4. On the other hand, countering to the submissions, learned counsel Mr. B.T. Rao has submitted that, where any time is fixed or granted by the Court, the Court may in its discretion either permit the parties to deposit the amount or enlarge such period. He has submitted that, it is no doubt true that, under Order 37 of the Code, there is no express provision giving power to the Court below to enlarge the time but, in such situation, the Court may exercise its power under Section 148 of the Code and if the Court after considering the reasons, may exercise its discretion granting extension and/or enlargement of the time. Relying on the judgment of the Apex Court delivered in case of D.V. Paul vs. Manisha Lalwani (2010
8 SCC 546), he contended that, when any period of time is granted by the Court for doing any act, the Court has the discretion from time to time to enlarge such period even if time originally fixed or granted by the Court has expired.
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5. Heard at length learned counsel for the respective parties and perused the impugned order.
6. In the facts of the present case, the respondent- defendant moved an application for extension of time and/or leave to deposit the amount of Rs.50,000/- in compliance with the order dated 09.09.2011. After filing the said application, the petitioner-plaintiff had also applied to deliver a judgment in terms of Order 37 Rule 3(6)(b), as the respondent-defendant failed to comply the order i.e. within one month he did not deposit Rs.50,000/-. The Court below considering the personal difficulties of the defendant, by exercising its judicial discretion directed him to deposit the amount. The contention is that, the Court below has no power to enlarge time and the petitioner-plaintiff having right to seek judgment.
7. Having heard learned counsel for the respective parties and on perusal of the statutory provisions as referred above, the contention that the trial Court has no power to enlarge time, cannot be accepted as in view of Section 148 of the Code, the Court has discretion to enlarge such period. The logic behind is that, where the Court has power to fix time and that power is not regulated by any statutory limits, it has power in appropriate cases, to extend the time fixed by it. In the case of D.V. Paul (supra), the Apex Court held that, there is nothing in Section 148 to suggest that, a power of extension of time
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cannot be exercised as Section 148 clearly reserves in favour of the Court the power to enlarge the time. It has further held that, the scope and exercise of jurisdiction to grant time to do a thing, in the absence of specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inher in its ambit the jurisdiction to extend time initially fixed by it.
8. Reverting to the facts of the present case, it was specific contention raised by the defendant that, there was a bonafide mistake in complying with the Court directives and now he is ready to deposit cash amount. The learned Court below, in the interest of justice and fair trial, directed the defendant to deposit the amount after the stipulated time. Thus, this Court is of considered opinion that, in the facts and circumstances of the case, granting extension of time and directing the defendant to deposit the amount, the Court below has not committed any jurisdictional error. Thus, therefore, the contention raised by learned counsel for the petitioner that the Court has no power to enlarge time having no any substance. The next contention is that, it is mandatory on the part of the Court to pass a judgment when there is non-compliance of the order and the Court has no option on this count. In the facts of the present case, the permission to deposit the amount with extension of time was sought on 18.07.2012 and subsequently i.e. on 09.08.2012, the petitioner-plaintiff sought the relief of judgment. If
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plaintiff could have applied for the said relief prior to the application filed by the defendant, then, Court may justify to pass necessary order in terms of Order 37 which says that, when the defendant permitted to defend the suit with condition and on his failure to comply with the order, the plaintiff shall be entitled to judgment forthwith. Thus, therefore, this Court do not find force in the contention raised by the counsel for the petitioner-plaintiff.
9. For the foregoing reasons as stated above and considering the peculiar facts and circumstances of the present case, this Court finds that, the impugned order has been passed after considering the statutory provisions and it cannot be said to be a perverse order which require to be interfered by this Court. Accordingly, the petition stands dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith. No order as to costs.
(ILESH J. VORA,J)
TAUSIF SAIYED
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