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High Court Of Madhya Pradesh
Shiv Dayal, C. J. , C. Kondaiah and C. M. Lodha, JJ.
BUDHULAL KASTURCHAND - Appellant
Versus
CHHOTELAL - Respondents
Second Appeal 557 Of 1968
Decided On : 08/21/1976
When the Court fixes time and directs payment of costs or to perform any other act, but there is no compliance within time, the defaulting party may apply for extension of time at one of the following stages: (1) Before the time fixed has expired. (2) After the time fixed has expired but before the Court has passed an order disposing of the proceeding finally so far as that Court is concerned. (3) After such order (finally disposing of the proceeding) has been passed. [Para 4]
In the first case, it is undoubted law that the Court has jurisdiction to extend the time initially granted by it. Sections 148 and 149 are abundantly clear and apply in terms.
[Para 5]
The third case also presents no difficulty whatever. When the Court has finally disposed of the proceedings before it and it becomes functus officio, no application for extension of time can be entertained by it, unless the order disposing of the proceedings is set aside and the proceedings are reopened by taking recourse to an appropriate remedy prescribed by the Code for reopening the proceedings. [Para 6]
There is considerable debate and controversy as regards the second case, i.e. where the time fixed by the Court has expired, but the Court hag not yet passed a formal order finally disposing of the suit or proceeding. [Para 7]
The language of section 148 CPC is wide enough to vest the Court with undoubted jurisdiction to enlarge the time, from time to time, and this jurisdiction extends even to a case where the period fixed has already expired.
Even if in the initial order the Court may have said that if costs are not paid before a certain date fixed for it, the suit shall stand dismissed, the Court does not lose seisin of the case after the expiry of such period notwithstanding a default. Such directions are in terrorem so that dilatory litigants put themselves in order. The Court does not cease to have jurisdiction on the happening of the default. There are no words in section 148 to confine it to cases in which extension is sought before the period fixed by the Court expires. The Court does not cease to have jurisdiction until it makes an order finally disposing of the proceeding before it. 1962 JLJ 268 overruled. ILR 48 Cal. 902 relied on. AIR 1950 Cal. 564, dissented from. [Para 10]
(2) Interpretation of statutes-rule of harmoneous construction-no part of the statute should be made meaningless or ineffective.
It is well settled that in construing a provision of a statute, the Court should not adopt a construction so as to make any part of the statute meaningless or ineffective. An attempt must always be made so as to reconcile the relevant provisions so that the remedy intended by the statute may be advanced.
When in an enactment there are two provisions which cannot be reconciled with each other they should be so interpreted that if possible effect can be given to both. This is what is known as the rule of harmonious construstion. AIR 1958 SC 255 and AIR 1959 SC 198 relied on. [Para 16]
(3) Interpretation of statutes-same word used at different places-interpretation of
Ordinarily the same meaning should be attached to the same word used in different parts of a statute but it is also a celebrated rule of interpretation of statutes that if sufficient reasons exist, the word can be construed in one part of an Act in a sense different from that in another part. Where a word admits of more senses than one, that sense has to be adopted which is harmonious with the context and promotes in the fullest manner the policy and object of the legislation. AIR 1971 SC 1283 relied on, AIR 1957 SC 23, AIR 1965 SC 414, AIR 1965 SC 1839, AIR 1957 SC 207, AIR 1952 SC 369 and AIR 1955 SC 425, referred to. [Para 17]
(4) Civil P. C. 1908 – Ss. 2(2) & 96 - suit dismissed fn default in payment of adjournment costs-order of dismissal is appealable as decree-scope of the word 'default' in section 2 (2).
An order dismissing a suit for default in payment of costs is appealable as a decree. The word "default" in section 2(2) of the Code of Civil Procedure refers only to non-appearance of parties as specifically referred to in Order 9 and in Order 17, Rule 2, C.P.C. It does not include any other default. Obviously enough, the word "default" in Order 17, Rule 3. C.P .C. is, having regard to its context, wide enough to apply to every default referred to in the earlier part of the Rule. It is permissible under the rules of interpretation of statutes that the same word occurring in an enactment in different sections can be construed to have different imports according to the context. 1975 JLJ 52, overruled. AIR 1950 Assam 169 dissented from, 27 MPLC 27 and 29 MPLC 254, approved. AIR 1933 PC 68 AIR 1914 P.C. 63 AIR 1914 P. C. 66, referred to.
[Para 23]
(5) General Clauses Act, 1897 - S. 10 - Limitation Act. 1963 - S. 4-time fixed by order of the Court-principle contained in these provisions apply.
Section 4 of the Limitation Act applies in terms to suits, appeals and application. That section does not apply to other acts allowed to be done by law on a certain date or within a prescribed period. Such cases are governed by section 10 of the General Clauses Act, but the latter is also restricted in its scope to acts or proceedings allowed by any Act or Regulation to be done on a certain day or within a prescribed period. However, the general principles underlying section 4 of the Limitation Act or section 10 of the General Clauses Act apply to cases where the act is to be done under an order of the Court by a particular date or within a particular period fixed by it, and such date falls or such period expires on a date when the Court is closed. [Para 25]
(6) Practice-error obvious- may be corrected in suo motu revision or appeal.
It would be merely a matter of technicallity whether we set aside the order in exercise of appellate jurisdiction or in exercise of revisional jurisdiction suo motu. The error it obvious enough and the sooner it is corrected the better, in the interest of justice.
[Para 25]
( 1 ) APPELLANT Budhulal's suit was dismissed because he did not deposit or pay, within the time fixed by the Court, adjournment costs imposed on him on the preceding date of hearing.
( 2 ) ON the date of hearing, on which the trial Court dismissed the suit, the plaintiff had offered the amount of adjournment costs, which he had to pay. But the trial Court found itself powerless to extend time inasmuch as the plaintiff had been, directed on the preceding date to pay adjournment costs 'before the next date of hearing' and that order was peremptory: 'suit shall stand dismissed on non-payment of costs'.
( 3 ) THE plaintiff appealed from the order of dismissal of his suit. The learned district Judge held that the appeal was not maintainable inasmuch as the order of the trial Court was not a decree. The plaintiff then preferred this second appeal. It was heard by a learned single Judge, who found that the law was not certain because the authorities were not uniform or consistent on the question whether the Court has power to extend time for depositing costs in spite of the order imposing costs being peremptory. Accordingly, he framed the following questions and directed that the case be placed before the Chief Justice for constituting a larger Bench:-
" (1) Whether it was necessary be fore the time could be extended under Sections 148 and 149, Code of Civil Procedure, that an application should be filed before the period allowed by the Court had run out and whether the Court is clothed with ample powers under section 151, C. P. C. , to give redress in such cases?
(2) Whether the words 'dismissed in default' also refer, to default committed in respect of adjournment costs'?"
( 4 ) WHEN the Court fixes time and directs payment or costs or to perform any other act, but there is no compliance within time, the defaulting party may apply for extension of time at one of the following stages: (1) Before the time fixed has expired. (2) After the time fixed has expired but before the Court has passed an order disposing of the proceeding finally so far as that Court is concerned. (3) After such order (finally disposing of the proceeding) has :been passed.
( 5 ) IN the first case, it is undoubted law that the Court has jurisdiction to extend the time initially granted by it. Sections 148 and 149 are abundantly clear and apply in terms. Before us, neither side had anything to say against this proposition, nor are we aware of any decision taking a contrary view. It is, therefore, clear beyond any manner of doubt that in such a case the Court has the power and discretion to enlarge the period fixed or granted by it. Equivalent Citation:
( 6 ) THE third case also presents no difficulty whatever. When the Court has finally disposed of the proceedings before it and it becomes functus officic, no application for extension of time cap be entertained by it, unless the order disposing of the proceedings is set aside and the proceedings are reopened by taking recourse to an appropriate remedy prescribed by the Code for reopening the proceedings.
( 7 ) THERE is considerable debate and controversy as regards the second case, i. e. where the time fixed by the Court has expired, but the Court has not yet passed a formal order finally disposing of the suit or proceeding. One view is that where the order is peremptory but it is not complied with until the expiry of the period fixed by the Court, it becomes functus officio and ceases to have jurisdiction to extend the time. This is one view.
( 8 ) THE contrary view is that the Court has still the power to extend the time notwithstanding the earlier order being peremptory.
( 9 ) IN Sewratan v. Kristo Mohan Shaw, ILR 48 Cal 902 at p. 905 = (AIR 1922 cal 320 at p. 321) it was held that a further order was necessary by the Court before the suit came to an end and that on an application made before such order, it would be open to the Court, if; the circumstances before it justify such an order, to furt
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