Corporation of Calcutta vs Balkrishna Rajghoria

B.C. Ray, J.—This is an application u/s 115 of the CPC and it is directed against an order dated March 12, 1977, being order No. 335 passed by the Subordinate Judge, First Court at Alipore, being T.S. No. 92 of 1965 allowing the application of the Plaintiff opposite party u/s 148 read with Section 151 of the Code of Civil Procedure.

The father of the opposite party, Mathura Prosad Rajghoria, has instituted a suit being T.S. No. 92 of 1965 against the Corporation of Calcutta and the Commissioner, Corporation of Calcutta, the Defendants Petitioners, for a declaration that the Plaintiff is the licensee under the Corporation of Calcutta having exclusive right to display both illuminated and non-illuminated advertisements of their own as was on behalf of their clients'' kiosks fixed and to be fixed on all the electric and gas lamps posts belonging to and within the jurisdiction of the Corporation of Calcutta on the terms and conditions contained in the grant dated March 31, 1960, of the Corporation of Calcutta, the Defendant No. 1. The Plaintiff''s case in short is that in 1942 the Plaintiff was carrying on a business under the name and style of Calcutta Advertising Society and was granted licence for displaying advertisement of kiosks fixed and to be fixed on all the electric and gas lamp-posts belonging to the Calcutta Corporation on payment of sums as licence-fee for a period of seven years. After the expiry of the said licence the Plaintiff was given fresh licence in 1949 by an order of the Administrative Officer, Corporation of Calcutta, on December 13, 1949 and according to the terms of the said order the licence was to continue till March 19, 1962. The Plaintiff had to pay licence-fee at certain rates specified in the said order. The licence was to remain in force till March 31, 1962. The Plaintiff, it has been stated, offered to the Standing Committee a proposal for the grant to him of further licence for the display of illuminated kiosks on the Corporation lamp-posts for a period of 15 years and he was prepared to surrender the unexpired term of the existing licence under the Standing Town Planning and Improvement Committee by a resolution dated October 6, 1959, recommended for acceptance the proposal of the Plaintiff opposite party subject to certain terms and conditions.

The Corporation, however, by its resolution dated February 19, 1960, directed the said Standing Town Planning and Improvement Committee to invite tenders and to consider the matter afresh receiving the tenders. The Committee, however, passed on March 31, 1960, another resolution recommending tile grant of a fresh licence to the Plaintiff without inviting tenders, he said recommendation of the standing Committee was not accepted by the Corporation or Calcutta at its meeting held on December 1, 1960 and the matter was referred back to the Committee to comply with the directions of the Corporation. The Committee, however, made a request to the Corporation to reconsider the Corporation s earlier decision dated February 19, 1960, directing the Committee to invite tenders and to confirm the previous recommendations of the Committee dated March 31, 1960. The Corporation at its resolution dated March 3, 1961, passed a resolution disapproving the recommendations of the Committee and directing to advertise the licence after the expiry of the existing terms of the licence. The term of the licence expired on March 31, 1962 and the Plaintiff having been not removed the kiosks fixed by him on the lamp-posts belonging to the Corporation the Plaintiff was directed by the Commissioner of Calcutta Corporation to remove the kiosks from the lamp-posts stands as the period of his licence had expired by letter issued by the Lighting Superintendent on June 20, 1963. The Plaintiff was also requested by another letter dated June 26, 1963, to remove the kiosks immediately from the lamp-posts. Against the order of the Commissioner, Mathura Prosad Rajghoria moved this Hon''ble Court in application under Article 226 of the Constitution of India and obtained a Rule of interim injunction restraining the Petitioners from enforcing the aforesaid letters till the disposal of the Rule. On April 30, 1965, the said Rule was discharged on the ground that the disputes involved could not be decided in a writ petition. The order of interim injunction, however, allowed to continue for a period of three months from the date of the order. Hence, this suit has been filed. There was a prayer for permanent injunction restraining the Defendants Petitioners, their servants and agents from giving effect to the orders of the Commissioner, Corporation of Calcutta.

An application for temporary injunction under Order 39, Rules 1 and 2 of the CPC was filed in the said suit by the Plaintiff. On August 24, 1968, the Subordinate Judge, First Court, Alipore, allowed the prayer for temporary injunction restraining the Defendant No. 1 Corporation of Calcutta from giving effect to the orders-in-question till the disposal of the suit on condition that the Plaintiff would deposit in Court to the credit of the Corporation a sum of Rs. 2,000 per month commencing from August 1968 failing which the injunction order should stand vacated.

Mathura Prosad Rajghoria died on September 14, 1971. On or about December 8, 1971, the opposite party Balkrishna Rajghoria claiming to be and under an alleged will of the Plaintiff applied for being substituted in place and instead of the deceased Plaintiff in the said suit. That application was, however, rejected by the Subordinate Judge on May 10, 1974 and the suit was held to have been abated. Against the said order an appeal was tiled by the opposite party before the District Judge, 24-Parganas and the said appeal was allowed by order dated November 27, 1975 and the opposite party was substituted in place and instead of the original Plaintiff.

On October 27, 1975, the Calcutta Metropolitan Development Authority invited tenders in respect of certain poles belonging to the said authority. This was challenged by the Plaintiff opposite party in an application under Article 226 of the Constitution in Matter No. 395 of 1975. This matter was disposed of by Dipak Kumar Sen J. on. April 2, 1976 and his Lordship was pleased to pass an order directing the Corporation and C.M.D.A. to maintain status quo as on that day and the Petitioner was directed to seek his remedy by a suit in an appropriate form if so advised. Thereafter, the Plaintiff opposite party prayed an action being T.S. No. 32 of 1976 against the C.M.D.A. and order of maintaining the status quo by both parties. In this case, however, the Corporation of Calcutta is not impleaded as a party.

As the Plaintiff did not comply with the order passed in the said suit on August 24, 1968, by depositing the sum directed to be deposited per month the order of temporary injunction stood vacated. On December 18, 1976, the Plaintiff opposite party made an application u/s 148 read with Section 151 of the CPC stating, inter alia, that the deceased Mathura Prosad Rajgharia deposited the said sum of Rs. 2,000 per month until his death which occurred on September 14, 1971, that during the pendency of the substitution application the Plaintiff was ready and willing to deposit the stated sum of Rs. 2,000 per month. As the suit was not pending the substitution application was rejected and an appeal against the same was allowed on November 27, 1975, for C.M.D.A. had become the authority of the lamp-posts as evident from the notification issued by the said Authority and the opposite party could not deposit the said amount and had to institute suit against the C.M.D.A. as stated before. It has been stated that since April 1976 the Plaintiff opposite party has been duly depositing the said sum of Rs. 2,000 per month and with regard to the period prior to the said date the Petitioner was ready and willing to deposit the sum at all material times, but by reason of the facts aforesaid the Petitioner was prevented from depositing the said sum and as such, it has been prayed that time to make the outstanding deposit be extended till the said date and be given the Petitioner liberty to deposit the same by reasonable instalments and to pass an interim order of maintaining status quo in terms of the previous order of injunction made on August 24, 1968, during the pendency of the application. The Petitioner the Corporation of Calcutta filed a written objection contending, inter alia, that the Plaintiff was to prove that the deceased deposited the said amount of Rs. 2,000 per month until his death on September 14, 1971, as alleged in the petition. It has also been denied that the lamp-posts belonging to the Corporation of Calcutta being vested in the C.M.D.A. and it has been stated only the new mercury vapour street light poles planted within the municipal limits of Calcutta by C.M.D.A. belonging to C.M.D.A. It has been further stated that the order of temporary injunction as passed by the learned Subordinate Judge stood vacated as the, Plaintiff failed to comply with the said order. The Administrator, Corporation of Calcutta, in the meantime has already appointed for 10 years M/s Classics Advertising as sole concessionaire of the street lamp-posts belonging to the Corporation of Calcutta for mounting advertisement with effect from December 22, 1976 and the said concessionaire already deposited in advance a sum of Rs. 2,74,475 in the office of the Defendant in payment of 75% of the total licence-fee fixed at Rs. 3,03,300, that an application was moved by the Plaintiff against order No. 321 dated December 22, 1976 and obtained an order of maintaining the status quo regarding kiosks on condition of depositing a sum of Rs. 1,34,000 in two instalments being arrears '' of licence-fees without prejudice to the rights and contentions of the Petitioner. The said application, however, was rejected and the learned Subordinate Judge was directed to decide the application under Sections 148 and 151 of the CPC pending before him within a fortnight. It has been submitted that the application was not maintainable and by depositing the amount for the period of default at this stage the time for making the deposit could not be extended as that order had already taken effect.

On March 12, 1977, the Subordinate Judge, First Court, Alipore, by order No. 335 held that the Court possessed jurisdiction u/s 148 of the CPC to enlarge the time after the expiry of the time fixed in the order and allowed the application for extension of time. The Subordinate Judge also passed an order to the effect that the previous order of injunction as passed on August 24, 1968, would be operative that is status quo in respect of kiosks with the Plaintiff Petitioner which having not been demolished to be maintained by the Defendant No. 1.

It is against this order this revisional application has been moved and a Rule and an interim order of stay of operation of the impugned order dated March 12, 1977, till the disposal of the Rule was obtained.

An affidavit-in-opposition has been filed on behalf of the Plaintiff opposite party denying the statements and contentions made in the petition and submitting that the application is not maintainable inasmuch as there is no illegal exercise of jurisdiction or manifest error of jurisdiction in passing the impugned order.

An affidavit-in-reply sworn by one Dilip Kumar Majumdar, Surveyer and Valuer of the Petitioner No. 1, on April 25, 1977, has been filed on behalf of the Petitioner. It was denied that in April 1962 any licence-fee was received from Mathura Prosad Rajghoria since deceased on the basis of the recommendation of the Town Planning Committee dated March 31, 1960. It has also been submitted that if such amount had been so received it was received subject to the final decision of the Corporation of Calcutta and the same was liable to be returned in case the Corporation refused to accord its approval to the recommendation of the said Committee. In para. 21 of the said affidavit-in-reply it has been stated that the Petitioner had no right to display illuminated kiosks on the Corporation lamp-posts any longer as the term of the licence had already expired.

Mr. J.N. Ghosh, learned Advocate appearing on behalf of the Petitioners, has contended that the order of temporary injunction was made subject to the observance of certain conditions and it was also provided in the said order that in case of non-observance of those conditions the order of temporary injunction must stand vacated. The Plaintiff opposite party admittedly failed to comply with the said terms and conditions and as such, the interim order of injunction stood vacated. No sufficient cause has been made out for such failure on the part of the opposite party to comply with the terms of the order of temporary injunction and as such, the Court below was wrong in allowing the application for extension of time. It has also been contended by Mr. Ghosh that Section 148 of the CPC applies only in cases where any time is fixed for doing of any act prescribed or allowed by the Court. This case does not come within the purview of Section 148 of the CPC and as such, the application is also liable to be dismissed. It has lastly been contended that the Administrator, Corporation of Calcutta, has already appointed M/s Classics Advertising as a sole concessionaire of the street lamp-posts of the Corporation of Calcutta for mounting advertising kiosks with effect from December 22, 1976 and the licence-fee was fixed at Rs. 3,03,300 on which 75% of the said amount have been deposited already and as such, it is not proper in the facts and circumstances of the case to grant an extension of time for making monthly deposits as provided in the impugned order of temporary injunction.

Mr. Somnath Chatterjee, Learned Counsel appearing on behalf of the Respondent opposite party has, on the other hand, submitted that the Court below has jurisdiction u/s 148 of the CPC to grant an extension of time even in a case where the time to make the deposits provided in the order of temporary injunction expired already and as such there being no lack of jurisdiction on the part of the Court below in passing the impugned order the said order could not be interfered with on an application u/s 115 of the Code of Civil Procedure.

Admittedly, the Plaintiff opposite party was granted a licence for a period of 15 years to display advertisements on Corporation lamp-posts by fixing kiosks thereon on payment of certain licence-fees to the Petitioner, Corporation of Calcutta. The said licence was to expire on March 31, 1962. The licence was granted in the name of Mathura Prosad Rajghoria, the father of the present opposite party Balkrishna Rajghoria and the said advertising business was being carried on under the name and style of M/s Calcutta Advertising Society. It also appears that in 1959 the proposal made by Mathura Prosad Rajghoria for granting him licence for a further period of 15 years for display of illuminated advertisements on kiosks fixed on the Corporation lamp-posts was recommended by the Standing Town Planning and Improvement Committee to the Corporation of Calcutta by its resolution dated December 2, 1960. The said recommendation, however, was not approved or sanctioned by the Corporation which directed to advertise the licence on the expiry of the existing term. The term of the licence expired undoubtedly on March 31, 1962 and after its expiry the opposite party No. 2, the Commissioner, directed the Plaintiff opposite party to remove the kiosks fixed on the lamp-posts of the Corporation. An application under Article 226 of the Constitution being unsuccessful Mathura Prosad Rajghoria as Plaintiff has filed T.S. No. 92 of 1965 for a declaration that he is a licensee and the order of the Commissioner is void and illegal and not binding on the Plaintiff. In that suit application for temporary injunction was filed and on August 24, 1968, an order of temporary injunction was made to the effect that the Defendants Petitioners were restrained from giving effect to the order of removal of kiosks on condition that the Plaintiff would go on depositing a sum of Rs. 2,000 every month in default the injunction shall stand vacated. It appears that between the period September 1970 to September 1971 the said monthly deposits had not been made in terms of the said order. On September 14, 1971, Mathura Prosad. Rajghoria died and as late as on December 8, 1971, an application for substitution was made by Balkrishna Rajerhoria, the opposite party, for substituting him and the said application was dismissed by the trial Court on May 10, 1974. Against the said order an appeal was filed and the same was allowed. Curiously enough, the opposite party had not taken any step to deposit the monthly deposits which remain due since September 1970 during this entire period in the said suit. Moreover, even after the substitution of the opposite party in the said title suit no attempt has been made to deposit the sum of Rs. 2,000 every month as directed by the said order of temporary injunction nor any application was made for extension of time to make the said deposits u/s 148 of the Code of Civil Procedure. Of course, in the meantime, a writ petition was moved by the opposite party in Matter No. 395 of 1975 against the C.M.D.A. and others in respect of advertisement in certain poles fixed by them. The said Matter No. 395 of 1975 was, 1 however, disposed of by this Court on April 2, 1976. It may be mentioned in this connection that in the said matter wherein an order of maintaining of status quo was obtained the Corporation was not impleaded as a party Respondent. Thereafter, an application u/s 148 read with Section 151 of the CPC was filed in the said suit for extension of time to pay arrears of deposits in accordance with the order dated August 24, 1968. In the meantime, as the interim order of injunction stood vacated on account of failure on the part of the Plaintiff opposite party to comply with the terms of the said order the Administrator, Corporation of Calcutta, appointed M/s Classics Advertising as the sole concessionaire of the street lamp-posts as stated before and the said firm deposited a sum of Rs. 2,27,475 as licence fee. The said appointment was duly notified in the newspaper. It has been stated that the said advertising firm took possession of all the street lamp-posts within the municipal area in order to display advertisements by means of kiosks. This, of course, was denied by the opposite party in their affidavit-in-opposition. During the pendency of the said application the opposite party came up in revision in this Court and the said application was registered as Civil Order No. 4141 of 1976 wherein the Plaintiff opposite party was directed to deposit with the Corporation of Calcutta the arrears of the monthly deposits. The said application was, however, rejected.

Thus, it is quite clear that the Plaintiff opposite party was not at all diligent in complying with the terms and conditions of the order of temporary injunction passed on August 24, 1968. It also appears that in para. 3 of the application u/s 148 read with Section 151 of the CPC it has been stated that the deceased Mathura Prosad Rajghoria deposited the said amount of Rs. 2,000 per month until his death on September 14, 1971, The Petitioners in their objection to the said application specifically denied that such deposits had been made by Mathura Prosad Rajghoria. The Court below found that there was no such deposit by the original Plaintiff as alleged in the petition. It has, further, been held that the Plaintiff Petitioner has not been able to satisfy the Court that the original Plaintiff, since deceased, deposited the amount month by month in compliance to the Court''s order dated August 24, 1968, till his death. Moreover, as I have stated before, the Plaintiff opposite party had not taken any steps to comply with the said order nor did he make any application in the Court below u/s 148 of the CPC praying for extension of time. In the facts and circumstances of the case it is quite evident that the Plaintiff has not made any bona fide attempt to comply with the order and the instant application is not bona fide, one. Moreover, no sufficient cause has been made out by the Plaintiff opposite party in his application for his inability to comply with the terms and conditions of the said order and for extending the time to make the monthly deposits as directed by the said order. This being the position in our considered opinion, the Subordinate Judge acted illegally and with material irregularity in allowing the application for extension of time.

With regard to the question whether the Court has jurisdiction to grant an application for extension of time filed after the interim order stood vacated due to non-compliance with the said order it is pertinent to refer to a Bench decision of this Court in Bokaro and Ramgur Ltd. v. State of Bihar AIR 1965 Cal. 508 where it has been held as follows:

Where an interlocutory order is made in a pending proceeding, either stating another proceeding or granting an order of injunction, on condition that a particular sum of money be paid within a specified time, the stay or injunction would continue and in default thereof, a stay order or injunction would stand vacated. In such a case, the Court having seisin of the main proceeding may extend the time even after default in exercise of its power u/s 151 read with Section 148 of the CPC or may make fresh order granting fresh stay or fresh injunction on terms.

In Mahanth Ram Das Vs. Ganga Das, it has been observed by their Lordships of the Supreme Court that Section 148 of the Code allowed the extension of time even if the original period fixed has expired. This section can be invoked by the Applicant when the time had actually expired, procedural orders though peremptory are in essence in terrorem so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop Court from taking a note of events and circumstances which happen within the time fixed. This case of the Supreme Court has been relied upon Gobardhan Singh Vs. Barsati, and it has been observed:

Even in cases where an order is made by the Court for doing a thing within a particular time and the order further provides that the application, suit or appeal, shall stand dismissed if the thing is not done within time fixed, the Court had juris, diction, if sufficient cause is made out to extend the time even when the application for extension of time is made after the expiry of the time fixed. It is not the application for grant of further time, whether made before or after the expiry of the time granted which confers jurisdiction of the Court. The Court possesses the jurisdiction u/s 148 of the CPC to enlarge the time and the application merely invokes that jurisdiction.

In New Bangasree Bastralaya and Anr. v. Ramanlal Phurma Karta AIR 1976 Cal. 336 we have held that an application for extension of time u/s 148 of the CPC filed after the expiry of the time granted by the Court will be allowed provided it is proved that the Petitioners have all along been ready and willing to comply with the order of the Court.

It has been held by us already that the application for extension of time is not a bona fide one and no sufficient cause has been made out for the long delay in making this application after the order of temporary injunction stood vacated. We therefore make the Rule absolute and set aside the order No. 335 dated March 12, 1977, passed in T.S. No. 92 of 1965 by the Court below. There will, however, be no order as to costs.

N.C. Mukherji, J.

I agree.