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PETITIONER: MAHANTH RAM DAS

       Vs.

RESPONDENT: GANGA DAS.

DATE OF JUDGMENT: 07/02/1961

BENCH: HIDAYATULLAH, M. BENCH: 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  (condi- tional 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

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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.

JUDGMENT: 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

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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

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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

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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.