A.V. Arjunakuttan vs Moli Devarajan

K. John Mathew, J.—By the judgment dated 30th September, 1983 in O. S. No. 402 of 1981 of the Additional Munsiff's Court, Alleppey, the court allowed to recover vacant possess on of the plaint schedule shop room in the following terms:

In the result the suit is decreed as follows:- The plaintiff is allowed to recover vacant possession of the plaint schedule shop room. But in case the defendant pays into court within 15 days from the date of the decree the entire arrears of rent till date of decree with interest at the rate of 6% per annum from the respective dates for payment of rent till date of decree and full costs of the suit, then the defendant shall be relieved of the for feature incurred by him and he shall not be liable to be evicted in execution of this decree.

In case the defendant falls to deposit as directed the plaintiff shall also be allowed to recover arrears of rent from July, 1980 till date of suit with interest at 6% per annum from the dates of default and future rent from the date of suit till date of recovery of possession or for three years whichever is earlier and costs of the suit.

The arrears of rent etc. were deposited by the defendant only on 14-8-1984 along with IA No. 1530 of 1984 to set aside the decree for eviction and for dismissal of the plaint. Subsequently the defendant also filed I.A. No. 387 of 1985 on 18-3-1985 to enlarge the time originally fixed in the judgment for deposit of arrears etc. The lower court dismissed both these applications. In this C.R.P. the defendant is challenging the common order dismissing these applications. According to the defendant-revision petitioner, what was intended by the trial court while passing the conditional judgment was that the deposit should be made within 15 days from the date of signing of the decree. The decree was signed only on 30-7-1984. Therefore the deposit made on 14-8-1984 was within 15 days of the signing of the decree and therefore the deposit ought to have been accepted as proper compliance with the direction in the judgment. It was further pointed out that the judgment directed the deposit of cost of the suit also and the cost could be ascertained only after the signing of the decree. However, according to the 2nd plaintiff, who is the respondent herein, although the decree was signed only on a later date, the date of the decree is that of the judgment itself and therefore the defendant failed to comply with the condition mentioned in the judgment, and therefore the order of the lower court is perfectly legal.

The lower court invoked section 114 of the Transfer of Property Act in order to pass the conditional judgment allowing the defendant to pay off the arrears. Section 114 of the Transfer of Property Act is as follows:

Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.

In the judgment the trial court noticed that the defendant did not specifically pray for any relief u/s 114 of the Transfer of Property Act. However, the court took into consideration the various aspects of the case and granted relief under the said Section.

u/s 114, the lessee is to pay the tent in arrears, interest and cost of the suit at the hearing of the suit or give sufficient security as the court thinks sufficient for making such payment within 15 days. In Mulla's. The Transfer of Property Act (7th Edition), Page 763, the learned author has observed as follows:

Having regard to the practice on the original side of the Bombay and Calcutta High Courts it will be difficult, if not impossible, for the tenant to comply strictly with the provision of this section, for the costs cannot possibly be paid or tendered at the hearing or even within 15 days as they have to be ascertained on taxation which takes considerable time. It is submitted the Court will construe the section liberally and direct that security be given for payment of the costs within fifteen days after the costs are taxed and allocator issued.

One of the grounds urged by learned counsel for the defendant is that the costs could be ascertained only after the decree is finalised. The payment envisaged u/s 114 is to be done at the hearing of the suit. Failing this, the lessee may give security for the payment which has to be effected within 15 days. That is the condition for granting relief u/s 114, T.P. Act. In Namdeo Lokman Lodhi Vs. Narmadabai and Others, the Supreme Court held that the entire conduct of the lessee was relevant in granting relief u/s 114, T.P. Act, since the relief under that provision is an equitable relief. In several reported cases we come across instants where relief has been refused when the lessee has been a persistent defaulter, or has raised frivolous or vexatious defences, or has with held rent for a considerably long period - see Namdeo Lokman Lodhi Vs. Narmadabai and Others, , Narsingh Das and Another Vs. Permeshwari Das, and Kishnanlal Singol v. Hari Kisson ( AIR 1956 Ass. 113). The primary condition in Section 114, T.P. Act is to pay or tender to the lessor the rent in arrears, interest and full costs of the suit. Alternatively the lessee may give security to pay these amounts within 15 days. Under the circumstances it is doubtful whether the court is empowered to extend the time fixed u/s 114, T.P. Act.

In any view of the case the defendant has not at all given any explanation for not remitting at least the arrears of rent and interest within the time allowed by the court. The cost of the suit was only a small amount compared to the arrears of rent and interest. In case the defendant was unable to deposit the cost of the suit, he could have prayed for sanction to furnish security for the approximate cost that may be payable by him. Without even attempting to substantially comply with the condition in the judgment he waited for about 10 months to make the deposit Under Rule 6A of Order XX C.P.C. the last paragraph of the judgment shall contain in precise terms the relief which has been granted by any judgment. Sub-rule (2) of Rule 6A provides that every endeavour shall be made to ensure that the decree is drawn up at least within 15 days from the date of the judgment. Even if the decree is not drawn, the aggrieved party may request the court to certify that the decree has not been drawn up and on that basis file an appeal against the judgment even without filing of a copy of the decree. In such a case the last paragraph of a judgment shall be deemed to be a decree for the purpose of execution. It may also be noticed that as provided in Rule 3 of Order XX, once the judgment is signed it shall not be altered or added to, save as provided in Section 152 or on review. Under Rule 196 of the Civil Rules of Practice, within 10 days from the date of judgment, each party shall file a statement of the cost and expenses incurred by him in the prescribed form together with Advocate fee certificate. That rule also enables every party to inspect and take a copy of the said statement or the statement prepared by the officer of the court, as the case may be. Therefore it was not difficult for the defendant to find out the cost, if he had really wanted to deposit the cost also. Learned counsel for the plaintiff also contended that Section 148 of the CPC empowers the court to grant further time only for the doing of any act prescribed or allowed by the C. P. C. It was also pointed out that Section 149 of the Code confers a specific power to make up deficiency of court fee. In Mahanth Ram Das Vs. Ganga Das, the Supreme Court was only dealing with the power of the court to extend time for payment of deficit court fee.

In P.K. Sukumaran Vs. Sulaiman Khan, the Madras High Court held that the court loses seisin over a suit which is decreed on condition that a certain amount is paid within a specified time and in default the suit will stand dismissed. In Hindurao Annasheb Patil Vs. Yeshwant Laxman Yadav, the Bombay High Court also held that after passing a Conditional decree the court has no jurisdiction to extend the time fixed under the decree for deposit of sale price within the time fixed in the decree. In Parmeshri v. Naurata ( AIR 1984 Pun. and Haryana 342) the Punjab & Haryana High Court held that the court is not competent to extend any time fixed under the decree and that Section 148 C. P. C. applies only to procedural orders and not to conditional decrees. In Budhulal Kasturchand Vs. Chhotelal and Others, the Madhya Pradesh High Court was considering only a case where there was no format order disposing of the suit, when the application for extension of time for payment of costs was filed, even though the suit was adjourned on payment of costs as a condition precedent. The first ground pressed by learned counsel for the defendant is that even under the judgment the court granted the defendant 15 days time from the date of the decree and that 15 days can only be from the date of singing of the decree even though the decree bears the same date as that of the judgment. As stated above, the trial court was exercising its powers u/s 114 of the Transfer of Property Act and so the judgment has to be accordingly interpreted. Therefore the defendant was bound to deposit the costs within 15 days of the date of the decree, namely the date of the judgment itself. The second contention is that in any view of the case the defendant's prayer for extension of time ought to have been allowed. It is highly doubtful whether the court is empowered to extend the time statutorily fixed under that Section. More over, the only ground for extension of time was that the defendant did not know the actual amount of costs of the suit. Even so, he could have deposited the arrears of rent and interest and furnished security for the approximate costs. By the judgment the court granted 15 days'' time. There was no attempt at least to substantially comply with the direction in the judgment. Being a conditional decree the court which passed the decree has no jurisdiction to extend the time fixed in the decree. In any view of the case since the defendant did not even substantially comply with the condition by depositing at least the arrears of rent and interest within the time fixed, there is no sufficient ground to grant the prayer for extension of time.

Under the circumstances, I hold that there is no illegality or jurisdictional error in the order of the lower court. Accordingly the C.R.P. is dismissed.