Back
2004 Supreme(HP) 251
High Court Of Himachal Pradesh
M.R.VERMA
MCDOWELL & COMPANY LTD. - Appellant
Versus
WINE LINK L-1 LICENSEE - Respondent
O.M.P. No. 138/2003 in Civil Suit No. 2 of 2003
Decided On : 10/29/2004
Mr. B.K. Sood vice Mr. K.D. Sood, Advocate, for the Plaintiff; Ms. Kiran Narula, Advocate, for the Defendants.
Headnote:CIVIL PROCEDURE CODE, 1908 - Section 151 - Inherent powers - Exercise of - Relief to the party Held, that inherent powers of the court cannot be exercised where there is an express provisions of the law applicable to the case Inherent powers are intended for exceptional cases and are not intended to enable the courts to ignore the provisions of law which govern procedure nor can the inherent powers of the court be used to relieve a party from the consequences of his own mistake or to enable him to evade, the law specifically providing time for doing certain acts, . in furtherance of its case - Application dismissed.
CIVIL PROCEDURE CODE, 1908 - Section 151 Rule 1 of Order 5 and Rule 1 of Order 8 CPC - Inherent powers - Application under Section 1.48 and 451, CPC - Written statement - Extension of time - Held, that the inherent powers of the court cannot be exercised where there is an express provision of law applicable to the case - Therefore, the inherent powers of the Court cannot be invoked to circumvent the provisions of Rule 1 of Order 5 and Rule 1 of Order 8 CPC - Defendants cannot be granted extension of time to file the written statement beyond the statutory period prescribed by the Legislature - Application dismissed.
INTERPRETATION - Enabling manner - Procedural law - Held, that procedural laws must ordinarily be interpreted in an enabling manner - However, as and when the procedural law is clearly and unambiguously defined and afford reasonable opportunity to a party to do certain things within specified period, such provisions are to be given effect to otherwise the very purpose of such provisions evidently meant for quick delivery of justice will be frustrated.
M.R. Verma, J.—This application under Sections 148 and 151 of the Code of Civil Procedure (hereafter referred to as the Code) has been filed by the applicants/defendants hereafter referred to as the defendants) for extension of time to file written statement.
2. Brief facts leading to the filing of this application are that the non-applicant/plaintiff (hereafter referred to as the plaintiff) has instituted a suit against the defendants for recovery of Rs. 30,11/856/- on account of price of IMFL etc. supplied by it to the defendants. The defendants despite service did not file written statement within the prescribed period, therefore, moved the present application for extension of time for filing the written statement. It is averred that at the time of service of summons this Court was closed for winter vacation and the date for appearance was fixed for 20.3.2003. Due to some mistake in the number of the suit, the defendants could not put in appearance and were proceeded against ex parte and such ex parte order was set aside on 4.4.2003 and the case was listed for filing the written statement. Thus, taking into account the fact that at the time of service of the defendants the High Court was closed for winter vacation and subsequent non-appearance because of mention of wrong suit-number in the Cause List and the time taken in setting aside the ex parte order dated 20.3.2003, the written statement now filed along with the application within the statutory period of 90 days after deducting the aforesaid time, be taken on record by extending time for filing the written statement.
3. The application has been resisted by the plaintiff on the ground that the written statement has not been filed within the prescribed period despite time and opportunity, therefore, neither the statutory period can be extended nor written statement filed by the defendants can be taken on record.
4. I have heard the learned counsel for the parties and have also perused the records.
5. The defendants were admittedly served with the summons on 28.1.2003 and they admittedly did not file the written statement within 30 days of the date of service of summons i.e. till 27.2.2003 nor applied for allowing them to file the^ written statement within the next 60 days. No doubt, on and after 28.1.2003, the Court was closed for Winter Vacation but it was not so closed from 24th to 27th of February, 2003. The defendants not only failed to file the written statement within 30 days of the service of summons but also failed within that period to file any application for extension of time to file the written statement within the further period of 60 days which was to expire on 27.4.2003. The defendants admittedly were ordered to be proceeded against ex-parte on 20.3.2003 which order was set aside on 4.4.2003 whereas the time of 90 days from service of summons on them was to expire on 27.4.2003. The defendants again failed to file the written statement or application for extension of time till 27.4.2003. Thus, having ample time and opportunity, the defendants neither filed the written statement within the initial period of 30 days nor applied for extension of time to file the written statement within the further period of 60 days or even after expiry of total permissible period of 90 days till 21.5.2003 when the present application was filed.
6. It may be pointed out at the very outset that insofar as the present application purports to be under Section 148 of the Code, it is misconceived. Section 148 of the Code reads as under : "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. On a bare reading of the above provisions, it is clear that Section 148 of the Code empowers the Court to extend the period fi
