Writ Petition No.3814 of 2005

9th August, 2007

Petitioner Counsel: Mr. A.T.A.K. SHAIKH
Respondent Counsel: Mr. GIRISH RANE

Cases Cited:
Des Raj Vs. Bhagat Ram (deceased by L.Rs.), 2007 ALL SCR 1264 : 2007 AIR SCW 1560 [Para 7]
Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, 2005(5) ALL MR 876 (S.C.)=AIR 2005 SC 3353 [Para 7,10]
Alim Murtaza Kothawala Vs. Kasam Shaikh Sardar Pinjari, C.R.A. No.1124 of 1996, Dt.6/8/2003 [Para 10]

JUDGMENT

JUDGMENT :- Heard learned counsel for the parties.

2. This petition takes an exception to the order passed by Additional District Judge, Jalgaon below application Exh.-23 filed in Misc. Civil Application No.98 of 2001, dated 21st April, 2005.

3. There is no dispute that Respondent No.1, in this writ petition, Smt. Vijaya had filed Special Civil Suit No.222 of 1995 for partition and possession, in the Court of learned 3rd Joint Civil Judge, Sr. Division, Jalgaon. Present petitioner was defendant No.1 in that suit. Respondent Nos.2, 3 and 4 were defendant Nos.2 to 4 in the suit. This suit, after recording evidence, came to be decreed by the learned Civil Judge, Sr. Division, Jalgaon. The defendant No.1/petitioner filed first appeal under section 96 of the Code of Civil Procedure in the Court of learned District Judge, Jalgaon. The appeal was beyond the period of limitation and, therefore, application i.e. Misc. Civil Application No.98 of 2001, seeking condonation of delay of about 240 days, was filed. This application, after hearing the parties, came to be allowed by the learned Addl. District Judge, Jalgaon on 25th January, 2005. The delay was condoned subject to payment of Rs.250/-, to be paid by the Petitioner, in that application, to the Respondent No.1 within a period of fifteen days from the date of the order. This payment of Rs.250/- was not made by the present petitioner within stipulated period of time. The present Petitioner, therefore, filed an application at Exhibit-24 in Misc. Civil Application No.98 of 2001 (disposed of). This application was filed by the Petitioner on 19th April, 2005. This application, after hearing the parties, came to be rejected on 21st April, 2005, as noted above, by the learned Additional District Judge, Jalgaon.

4. Learned Counsel for the Petitioner submits that decree for partition and possession is passed by the trial Court against the Petitioner. Being aggrieved by this judgment and decree, appeal was filed, which was delayed by about 240 days only. Delay in payment of costs is properly explained in the application Exh.-23 and learned District Judge ought to have allowed this application.

5. Mr. Rane, learned Counsel for the Respondents, submits that the order imposing costs was conditional one. Time of fifteen days was permitted by the learned Additional District Judge while condoning the delay. According to him, the Petitioner ought to have deposited the said amount on or before 9th February, 2005. Petitioner had also not sought extension of time. Even at the time of filing application Exh.-23 no such extension was sought. This application was filed under section 151 of the Code of Civil Procedure and without seeking extension of time, permission to deposit costs of Rs.250/- was sought. According to him, this application also is not maintainable and, therefore, has been justifiably rejected by the learned Additional District Judge. He also submits that extension of time can be sought under section 148 of the Code of Civil Procedure at the most for the period of 30 days in its totality. He has also pointed out that in the present case the delay is about three months.

6. It is undisputed that order passed in Misc. Civil Application No.98 of 2001 is conditional order. Period of fifteen days, was permitted as pointed out by Advocate Mr. Rane, it expired on 9th April, 2005. However, enlargement of time is the power vested with the Court. Reference can be made to section 148 of Civil Procedure Code, which reads, thus:

"148. Enlargement of time.- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired."

7. The application filed by the Petitioner seeks permission to deposit an amount of Rs.250/-. Since this deposit was not within a period of limitation, as ordered by the learned Additional District Judge in Misc. Civil Application No.98 of 2001, such application was filed by the Petitioner. It is true that there is no specific prayer made in this application seeking extension of time. However, the tenor of the application is explaining the delay occurred beyond fifteen days, which was mentioned in the order passed in Misc. Civil Application No.98 of 2001. The Petitioner has tendered explanation in this application that after passing of the order on 25th January, 2005 in Misc. Civil Application No.98 of 2001, the Petitioner was not attentive due to her illness. She, therefore, could not deposit the amount of Rs.250/- within the permitted period, through oversight. In support of this contention it seems that the Petitioner had filed affidavit in the trial Court itself. This explanation, in fact, should have been appreciated by the learned Additional District Judge while considering the prayer made by the petitioner. Order passed by the learned Additional District Judge is cryptic, running in three lines. The learned Additional District Judge did observe that petitioner did not seek extension within the prescribed time. However, there is no finding regarding the explanation tendered by the petitioner in this application itself. It is true that the petitioner did not specifically sought extension of time, in this application Exhibit-23. Application Exhibit-23 is exhaustive. It contains requisite pleading. Only because the parties did not use the terminology, which they should have, ipso facto, would not mean that the ingredients for satisfying the requirements of statute are absent. Moffusil pleadings, as is well known, must be construed liberally. It is so held by the Apex Court in the matter of "Des Raj and Ors. Vs. Bhagat Ram (deceased by L.Rs.) and Ors." reported in 2007 AIR SCW 1560 : [2007 ALL SCR 1264]. Thus, this application, is for extension of time and thereby acceptance of an amount of Rs.250/-, which she was willing to deposit after the period prescribed in the order passed on 25th January, 2005. Learned Counsel for the petitioner justifiably has relied on the judgment of the Apex Court in the matter of "Salem Advocate Bar Association, Tamil Nadu Vs. Union of India" reported in AIR 2005 SC 3353 : [2005(5) ALL MR 876 (S.C.)]. The Apex Court considered the provision laid down under section 148 of the Code of Civil Procedure, after its amendment, made enforceable on 1st July, 2002. The Apex Court, in para 47, observed that there can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend time beyond 30 days. The Apex Court has also observed in para 45 that the rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to fully operate. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for the reasons beyond the control of the party.

8. At the cost of repetition, I am referring to explanation tendered by the petitioner in the application, which is supported by affidavit Exhibit-24. Relevant portion from the said affidavit Exhibit-24 reads that the appellant/applicant was not feeling well. She, therefore, lost attention of the order dated 25th January, 2005, obligating her to deposit the cost within time stipulated therefor. Therefore, through oversight she could not comply the order passed by the Court. This fact was perceived by her 10/12 days prior to filing of this application.

9. From the copy of the application Exhibit-23 it appears that the reply was filed on behalf of the Respondent. It runs in about 4/5 lines. It is mentioned in this reply that initial application filed by the applicant was for condonation of delay. It was allowed. The amount of costs was not deposited within permissible time. Therefore, this application is not maintainable. From this reply it is manifest that the ground raised by the petitioner that she was not feeling well and, therfore, lost attention to comply with the order, even is not denied by the respondents. On this back ground, the learned Judge ought to have exercised the discretion for prevention of failure of justice. On the contrary, the learned Judge rejected the application by cryptic order. This order, in my view, is perverse. The Court is vested with the power to enlarge the time beyond the period of 30 days under section 148 read with section 151 of the Code of Civil Procedure in appropriate case, subject to satisfaction of the sufficient cause. I am satisfied that sufficient cause was shown by the petitioner in this case and, therefore, the said application ought to have been allowed.

10. Advocate Mr. Rane for the Respondent has relied on the judgment of learned Single Bench of this Court in Civil Revision Application No.1124 of 1996 in the matter of "Alim Murtaza Kothawala Vs. Kasam Shaikh Sardar Pinjari & Ors.", delivered on 6th August, 2003. At the outset, it is to be noted that this judgment is delivered by the learned Single Bench of this Court on 6th August, 2003. The suit there, in that matter, was Special Civil Suit No.4 of 1988. Facts emanating are different. Even otherwise, I would prefer the judgment of the Apex Court in the matter of Salem Bar Council [2005(5) ALL MR 876 (S.C.)] (supra).

11. In the result, the judgment and order passed by the lower Appellate Court on 21st April, 2005 is quashed and set aside. Application filed by the Petitioner Exhibit-23 seeking permission to deposit Rs.250/- is allowed. The Petitioner is permitted to deposit Rs.250/- on or before 10th September, 2007 in the Court of learned Additional District Judge, Jalgaon. Regular Civil Appeal to be disposed of by the Court concerned expeditiously on or before 31st October, 2008.

Order accordingly.