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Judgment
M. Venugopal, J.—The civil revision petitioner/4th petitioner/5th defendant has filed these two civil revision petitions as against the orders
dated 09.09.2008 in I.A. Nos. 6977 and 6978 of 2008 in O.S. No. 3804 of 2005 passed by the II Assistant City Civil Court, Chennai in
dismissing the applications for non payment of costs.
The trial Court has passed orders in I.A. Nos. 6977 and 6978 of 2008 on 22.08.2008 separately stating that ''in the result, the petition is
allowed on payment of cost of Rs. 1,000/- (Rupees one thousand only) to the respondents and the costs shall be paid on or before 8.9.2008. Call
on 9.9.2008 and since the cost has not been paid on 09.09.2008 it has dismissed both the applications.''
The learned Counsel for the revision petitioner/4th petitioner/5th defendant contends that due to the petitioner counsel''s inadvertence, the date
has been wrongly noted and therefore, the revision petitioner has not been in a position to comply with the conditional orders passed in I.A. No.
6977 and 6978 of 2008 dated 22.08.2008 and therefore, the trial Court has dismissed the applications on 09.09.2008 for non compliance of
conditional order and that when cross examining the P.W.1 the revision petitioner/4th petitioner/5th defendant cannot proceed further since it will
cause great prejudice to him and if the evidence of P.W.1 is not reopened the revision petitioner cannot establish his case and that for the default of
revision petitioner''s Counsel, the party ought not to be penalised and therefore, prays for allowing the revisions in furtherance of substantial cause
of justice.
It is to be pointed out that before the trial Court in I.A. Nos. 6977 and 6978 of 2008 have been taken out by the defendants 1, 2, 4 and 5 as
petitioners to reopen the evidence of P.W.1 and to recall the P.W.1 for the purpose of cross examination.
The learned Counsel for the revision petitioner/5th defendant cites the decision of this Court in Gowri Ammal Vs. Murugan, Anbu, Sekar and
Saroja Ammal, wherein this Court has inter alia held that ''Sections 148 and 151 of CPC are to be read together and if so read the Court has
power to entertain petition for extension of time, fixed in original conditional order. She also relies on the decision in Jothi Anand v. Amirtha Raj
2006 (5) CTC 233 whereby this Court has held that ''application for extension of time to comply with the conditional order to be entertained if he
filed after dismissal of the application.'' Another decision in Pichammal and Unnamalai Vs. Annamalai and Unnamalai Ammal, has been pressed
into service on the side of revision petitioner to the effect that ''extension of time for payment of cost beyond maximum period of 30 days can be
permitted by Court if act was not performed within 30 days for reasons beyond control of party and that the trial Court does not become functus
officio and it has power to extend time for payment of cost. She also brought the attention of this Court to the decision in C.R.P.(NPD). No. 82 of
2007 dated 06.02.2007 to the effect that ''Section 148 of CPC confers ample discretionary powers on Courts regarding enlargement of time and
Section 151 of CPC can be invoked to seek necessary Order for ends of justice. Therefore, non-filing of application u/s 148 of CPC before lower
Court by itself need not be an impediment in showing indulgence to the petitioner.''
The learned Counsel for the respondents 1 and 2 submits that the civil revision petitioner is not an aggrieved person and that in the main case
P.W.1 has been examined and the case has been posted as defendants side evidence to 20.2.2008, on the hearing date of 12.2.2008 and since
there was no representation till 3.50 p.m. On 20.2.2008 on the side of defendant, the defendant was set exparte and posted for orders on
25.2.2008 and at that time, a set aside application I.A. No. 3303 of 2008 has been filed in which notice has been ordered by 28.2.2008 and that
on 28.2.2008 notice has been given and the matter has been posted for filing counter on 10.3.2008 and the application I.A. No. 3303 of 2008 has
been allowed on 10.3.2008 and that the matter has been posted for cross of P.W.1 by 17.3.2008 and the cross of P.W.1 has been adjourned to
26.3.2008 at the request of the defendant and further that I.A. No. 5323 and 5324 of 2008 have been allowed and the cross examination of
P.W.1 has been posted to 08.04.2008 and on 15.04.2008 the P.W.1 and his Counsel were present from 11.05 a.m. to 12.30 p.m. and nobody
was represented on behalf of the defendants side and that defendant was called absent and treated as no cross of plaintiff side and that evidence
has been closed and the matter has been posted for defendants side evidence on 16.04.2008 and in I.A. Nos. 6977 and 6978 of 2008 a common
counter has been filed by the plaintiff/respondent and the respondent side argument was heard and the matter has been posted for petitioner side
argument by 29.04.2008 and again the matter has been posted to 04.06.2008 finally and on 04.6.2008 the petitioner side argument was heard
etc. and meanwhile the orders were not ready in I.A. Nos. 6977 and 6978 of 2008 and that the said interlocutory applications were directed to be
posted on 21.7.2008 and the matter has been posted for defendant''s side evidence and on 21.7.2008 records were received from Fast Track
Court No. V, Chennai and the matter has been posted to 11.8.2008 and on 11.8.2008 the Judge was on casual leave and the matter was
adjourned to 20.8.2008 an later the matter has been adjourned to 22.8.2008 and on 22.8.2008 a conditional order was passed in I.A. Nos. 6977
and 6978 of 2008 directing the petitioner to pay a cost of Rs. 1000/- each and the total cost of Rs. 2,000/- has been directed to be paid on
08.9.2008 and the matter has been posted to 09.9.2008 and since the costs were not paid the said applications were dismissed on 09.9.2008 and
the matter has been posted for defendant''s side evidence on 18.9.2008 and the matter was adjourned to 18.9.2008 to 15.10.2008 at the request
of defendant''s side and on filing a memo that CRP has been filed at the request the matter is adjourned to 05.11.2008 and later to 13.11.2008
and at no point of time the revision petitioner/5th defendant has appeared and that the first defendant alone has to establish his right and further that
the revision petitioner has filed two I.A. Nos. 19726 and 19727 of 2008 praying for an order to set aside the order dated 09.9.2008 and restored
the order passed in I.A. No. 6977 of 2008 and allowed the application on payment of costs and to extend the time limit for payment of costs and
the revision petitioner has not pressed the aforesaid interlocutory applications and the same has been dismissed as not pressed on 23.10.2008 by
the trial Court and therefore, the revision petitioner has abandoned his right of remedy and therefore, the civil revision petitioner cannot seek
indulgence of this Court and the default in non-payment of cost is committed by party and not by the Counsel and therefore, when the revision
petitioner has no absolute right, then Article 227 of the Constitution cannot come into an operative play and therefore, prays for dismissal of the
civil revision petitions.
The learned Counsel for the respondents 1 and 2 put forward a plea that the jurisdiction of the Honourable High Court under Article 227 of the
Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent
on the face of the record much less of an error of law and in support of the same, he cites the decision in Sadhana Lodh Vs. National Insurance
Company Ltd. and Another, wherein the Hon''ble Supreme Court has observed as follows:
The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or
Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In
exercising the supervisory power under Article 227 of the Constitution. The High Court does not act as an Appellate Court or the Tribunal. It is
also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the
inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision.
He further relies on the decision in A. Venkatasubbiah Naidu Vs. S. Challappan and Others, wherein the Hon''ble Supreme Court has laid
down as follows:
Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the
party had two other alternative remedies. Though no hurdle can be put against the exercise of the Constitutional powers of the High Court it is a
well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the
other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected
by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as if may, now it is idle to embark on that
aspect as the High Court had chosen to entertain the revision petition.
The sum and substance of the argument of the learned Counsel for the respondents 1 and 2 is that ''what the Trial Court can do cannot be done
by this Court under Article 227 of the Constitution of India''.
It is to be noted that a perusal of Section 148 of CPC makes it clear that where any period is fixed or granted by the Court for doing any act,
the Court can in its discretion, enlarge that period from time to time, notwithstanding the fact that the time originally fixed or granted may have
expired. It remains to be seen when an application filed u/s 145 of the CPC for enlarging time granted by the Court is dismissed whether the
petitioner has a remedy or not, in law. If the order is not final then a Court of law shall retain its domain over it and is seized of the issue, then it has
full power to make necessary orders including the one for extension of time. Per contra, if the tenor of the order is to the effect that in the event of
non-compliance it operates automatically and without further intervention of the Court, the Section 148 of CPC cannot be pressed into service for
the obvious reason that the Court has become functus officio. To put it differently, only when the proceeding is still pending and not finally disposed
off, then the Court has jurisdiction to grant further time. As a matter of fact if the omission of the litigant is trivial in nature and the same is not of a
serious nature and does not adversely affect the right of the parties, the Court can extend the time u/s 148 of CPC so that the technical omissions
may be cleared and further hearing of the case shall be proceeded in accordance with law. It is no doubt true that the power of a Court of law to
extend the time u/s 148 of CPC is discretionary and consequentially the Court is to consider the conduct of the party as a relevant factor while
applying for extension of time.
This Court aptly points out the decision T. Krishnaswamy v. Smt. Maniyamma AIR 2001 An P 37 wherein it is held that ''it is obvious that
dismissal of such an application in respect of which a petition for restoration cannot be filed, does not bar a fresh application for the relief of
enlargement of time. It is obvious that such a second application could seek extension of time not only up to the date on which the first application
was dismissed but also in respect of subsequent period also. It may be mentioned that under the same principle, the dismissal of an execution
petition in default does not bar a fresh petition if it is filed within the prescribed period of the limitation.'' Further, in the said decision, it is also
observed that ''inasmuch as no period of limitation has been prescribed separately for applications for restoring petitions u/s 148 of the C.P.C.,
only Article 137 of Limitation Act could be said to apply for which period of limitation provided for, is 3 years.''
Further, this Court also points out that in the decision Gobardhan Singh Vs. Barsati, it is held that ''the Section 148 of CPC empowers the
Court to extend the time even after expiry of the period originally fixed irrespective of whether the application for extension is made before or after
the expiry of that period.'' This Court point out to another decision Allahabad Development Authority Vs. Saifuddin and others, wherein it is held
that ''the word ""Court"" used in Section 148 of CPC means the Court which pass the order and fixed a date for particular act and not any other
Court or Subordinate Court.'' In the decision Pakkiammal v. Anaiappan 2000 A.I.H.C. 3806 , this Court has held as follows:
Time and again, the upper forums of law have concluded that on account of misquoting the provisions of law by a party would not deny him the
proper remedy that is sought for in the petitioner. Hence, it is the prayer that is to be taken care of and given importance to, and not the provision
of law under which the petition is filed. There is no denying of the fact that regarding enlargement of time. Section 148 confers ample discretionary
powers and Section 151 also speaks of the inherent powers conferred on Courts make any order that is necessary for the ends of justice or to
prevent abuse of the process of the Court. What is relevant at this juncture is, in such matters, neither Section 148 nor Section 151, CPC should
be read in isolation of the other. On the contrary, both these Sections should be read along with when the result could be easily arrived at in the
circumstance as one that is made in the case in hand. The lower Court should have easily allowed the petition filed on the part of the petitioner
seeking extension of time. On the contrary, expecting a very strict standard of proof, it has dismissed the petition which is not correct.
At this stage, this Court pertinently points out the decision Raj Nath Vs. Vijay Nath, whereunder it is held that ''the Court is entitled to consider
the conduct of the party in extending time in exercise of its discretion.''
It is not out of place to make a mention that in the common counter affidavit, it is mentioned inter alia in para 4 to the effect that ''the matter
was being called from time to time and no representation on behalf of the defendant''s was made but I have noticed the defendant''s counsel''s
office personnel''s in the Court. After waiting for a long time, the learned Judge passed over the matter and directed that the Counsel on record
should make an endorsement regarding the non-receipt of cost. I brought my Counsel to the Court and the endorsement was made in proof of the
non-payment of cost before 08.09.2008. Hence, the petition was dismissed and the suit was posted for evidence of the defendant''s side and
further in para 5 it is mentioned as follows:
On the next hearing date, the Learned Counsel appears to have represented to the Court that they will pay the cost by making oral submissions
which was not accepted to by the Court and the matter was adjourned. The matter was being adjourned from time to time on the ground that they
are taking steps to set aside the order and has filed the present revision petition which was brought to the notice of these respondent''s Counsel on
23.10.2008.
The learned Counsel for respondents 1 and 2 submits that the act of revision petitioner in not pressing the I.A. Nos. 19726 and 19727 of
2008 by making an endorsement to that effect and allowing the same to be dismissed by the trial Court as not pressed on 23.10.2008 itself clearly
shows that the revision petitioner has abandoned his right and the dismissal of I.A. Nos. 19726 and 19727 of 2008 operate as res judicata or
constructive res judicata etc.
The doctrine of Res Judicata means that an issue decided and which has attained finality and not to be reopened and re-agitated twice over.
Indeed, the plea of res judicata is not available when there is no contest on an issue between the parties and there is no conscious determination of
an issue, in the considered opinion of this Court. Inasmuch as the I.A. Nos.19726 and 19727 of 2008 have been dismissed as not pressed on
23.10.2008 by the trial Court, the plea of res judicata put forward by the learned Counsel for respondents 1 and 2 is negatived by this Court.
In the instant case, the fact that P.W.1 has not been cross examined from 28.01.2008 shows the dismal progress of the case and that too
when the main case remains at part-heard stage for so long, in the considered opinion of this Court.
On an overall assessment of the facts and circumstances of the case and inasmuch as the power of the Court u/s 148 of CPC is very much
discretionary and is aimed at securing the ends of justice in case of necessity and further, the cause of substantial justice overrides the technicalities
and moreover, because of the axiomatic fact that judiciary is respected not on account of its power to legalise injustice on technical grounds but
because it is capable of removing injustice and is expected to do so and furthermore, the processual law must not be an irritant in the administration
of justice, this Court permits the revision petitioner to file comprehensive applications praying for extending the time not only up to the date on
which the first application was dismissed but also in respect of the subsequent period also specifying the reasons for the inability of the petitioner to
pay the cost allowed by the Court within a week from today and on filing of such applications, the trial Court viz., II Assistant City Civil Court,
Chennai is directed to dispose of the same on merits and it is made clear that the civil revision petitioner/5th defendant shall cross examine the
P.W.1 diligently and swiftly without any further loss of time and without seeking any further adjournment in this regard and the trial Court is
directed to proceed further in the manner known to law in regard to the further conduct of the main suit O.S. No. 3804 of 2005 and to dispose of
the same within a period of three months from the date of receipt of copy of this order and to report compliance to this Court and with these
observations and directions, these Civil Revision Petitions are disposed off, leaving the parties to bear their own costs.