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Judgment
Dhirendra Mishra, J.
By this common order M.C.C. No. 526/07 and M.C.C. No. 533/07 filed by the applicants for grant of additional time of one year for handing over vacant possession of the suit land to the non-applicants, are being disposed of as this Court vide judgment and decree dated 7th August 2007 dismissing second appeal No. 16/2006 had directed the applicant of M.C.C. No. 526/07 to hand over vacant possession of the suit land within a period of six months and the applicant of M.C.C. No. 533/07 is operating the retail outlet from the suit land as agent of Bharat Petroleum Corporation.
It has been averred in the petition that the land for establishing new retail outlet has already been chosen and lease agreement has been executed with the owner of the land. ''No Objection Certificate'' for establishing retail outlet at new site has been obtained and approval from the Department of Explosive, Agra has also been taken for construction of retail outlet at new site. Tenders for construction of civil work of resitement have already been finalized, the same has been sent for approval and approval is expected by the first week of December 2007. After getting approval the construction work shall be commenced forthwith. The time required for construction and installment of the petrol pump/retail outlet has been detailed in paragraph-8 of the petition and accordingly, extension of additional period of one year for resitement of the present petrol pump has been prayed for. The applicants have also annexed the documents to demonstrate that the applicants/ judgment debtor have commenced the work of resitement and have already initiated necessary steps for the same.
The non-applicants in their reply have not specifically disputed the claim of the applicants that they have already commenced the work of construction of retail outlet at new site and that they have initiated various steps necessary for the same. However, they have taken an objection that sufficient time was allowed to the applicants and the decree cannot be modified. It has been further objected that there is no provision in the CPC (for brevity ''the Code'') of filing such application for extension of time for vacating the premises and both these applications are not maintainable for want of specific provisions under the Code. The Court becomes functus officio after final adjudication of the second appeal and the only remedy available to the applicants was to prefer an appeal before the Hon''ble Apex Court. The provisions of Order 47 or Section 151 of the Code are not applicable in the present case as the inherent powers u/s 151 of the Code can be exercised only in the pending matters and not in a decided suit. Various other objections have been taken by the non-applicants in their reply, however, the same being unnecessary and out of context, are not considered.
The short question for consideration of the instant applications is -(i) whether the instant applications for extension of time to vacate the suit land are maintainable ? (ii) whether the reasons assigned by the applicants for grant of one year''s further time for handing over possession of the suit land, are justified?
In the matters of Mahanth Ram Das Vs. Ganga Das, the appeal preferred by the Plaintiff was decided in his favour on the condition that he paid the court-fee on the amended relief of possession of the property involved in the suit and the Plaintiff was granted three month''s time to pay the court-fee for the trial court as also for the High Court. It was further observed that if the amount is not paid within the time given, the appeal shall stand dismissed and if the court-fee is paid within time, the appeal will be allowed with cost and the suit of the Plaintiff will stand decreed with cost. Since the Appellant was not able to find money, he filed an application for extension of time for paying the balance of the court-fee and the same was rejected with an observation that the proper remedy was review. Thereafter, a petition u/s 151 read with Order 47 Rule 1 of the Code was again filed assigning the reason for not being able to pay the deficit court-fee within the period allowed. However, the above petition was also dismissed with an observation that the said application did not fall within the Order 47 Rule 1 of the Code and Section 148 or 149 of the Code apply only to the cases, which were not finally disposed of, and time could be extended only before the final order was actually made. The request to extend the time under the inherent powers of the Court was also rejected for the same reason.
The Hon''ble Supreme Court allowing the civil appeal of the Plaintiff/ Appellant in paragraph-5 of the judgment observed that "Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That, the application was filed in the vacation when a Division Bench was not sitting, should have been considered in dealing with it even on July 13,1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from July 8,1954. How undesirable it is to fix time-peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed." Later on, it has further observed thus;
we are of the opinion that in this case the Court could have exercised its powers first on July 13,1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions u/s 151 of the Code were filed. If the High Court had felt disposed to take action on any of these occasions, Sections 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come.
In the matter of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, considering the scope of Section 151 of the Code, it has been held that "Section 151 itself says that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the fact of such a clear statement, it is not possible to hold that the provision of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it".
In the matter of Ram Chand and Sons Sugar Mills Pvt. Ltd. Vs. Kanhaya Lal Bhargava and Others, also it has been held that "the inherent power of a Court is in addition to and complementary to the powers expressly conferred under the CPC Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provision of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provision of S. 151 of the Code, they do not control the undoubted power of the Court conferred u/s 151 of the Code to make a suitable order to prevent the abuse of the process of the Court".
In the latest judgment in the matter of Shipping Corporation of India Ltd. Vs. Machado Brothers and Others, the Hon''ble Supreme Court referring to the judgment rendered in Ram Chand''s case (supra) with approval, has observed that "if there is no specific provision which prohibits grant of relief sought in an application filed u/s 151 of the Code, the Courts have all necessary powers u/s 151 of the Code to make a suitable order to prevent abuse of process of the Court".
In the matter of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, 2005 (2) SCCD 665 referring to the judgment delivered in the case of Manohar Lal Chopra it has been held that "the inherent jurisdiction u/s 151 of the Code cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive".
In the matter of Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005 (3) SCCD 1137 while dealing with the constitutional validity of Section 148 of the Code, it has been held that "the amendment made in Section 148 affects the power of the Court to enlarge time that may have been fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time". Referring to the judgment in the matter of Mahanth Ram Das (supra) it has been held that "there can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice. Section 148, therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend time beyond 30 days".
In view of the above judgments, the principle of law laid down by the Hon''ble Supreme Court may be summarized as under:
(i) that the High Court is not powerless to enlarge the time even though it had peremptorily fixed a particular time for doing an act. Section 148, in terms, allows extension of time, even if the original period fixed has expired.
(ii) that Sections 148 & 149 of the Act could be invoked by the applicant, when the time had not actually expired. The order extending time for payment, though passed after expiry of the time fixed by the original judgment, would have operated from the date on which the time already expired.
(iii) that procedural orders, though peremptorily, are in, essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed.
(iv) that the inherent powers cannot be exercised, if its exercise is inconsistent with, or comes into conflict with, any other express provisions of the Code and if there is specific provision which prohibits grant of relief sought in an application filed u/s 151 of the Code, the Courts have all the necessary powers u/s 151 of the Code to make a suitable order to prevent abuse of process of the Court.
(v) that the object of amendment of Section 148 of the Code that period for doing an act prescribed or allowed by the Court, shall not exceed 30 days, is not to promote the failure of justice and the same is to be read down to mean that where sufficient cause exists or events are beyond control of a party, the Court would have inherent power to extend time beyond 30 days.
In the present case, the applicants/judgment debtor were directed to hand over vacant possession of the suit land within a period of six months from the date of passing of the judgment & decree i.e. 7th August 2007 to the non-applicants. From perusal of the averments in the petitions and the documents annexed therewith, it is observed that the applicants/judgment debtor after dismissal of their appeal commenced necessary steps for resitement of the present retail outlet, they have already entered into a lease agreement for the new site and requisite ''No Objection Certificate'' from the Collector and approval from the Department of Explosive, Agra have already been obtained for construction of the new retail outlet at new site. Even the tenders for construction have been finalized. However, it has been averred that certain other formalities required to be fulfilled, are time consuming and in these circumstances, it has been prayed that additional time of one year may be granted for handing over possession of the suit land.
Citing judgment in the matter of Depot Superintendent H.P., Corpn. Ltd. and Anr. v. Kolhapur Agri. Market Commtt. Kolhapur, JT 2007 (9) SC 57 it was submitted by learned Counsel for the applicants that in the identical case the Hon''ble Supreme Court dismissing appeal of the oil company vide order dated 20th June 2007 extended the time for handing over the vacant possession up to the end of June 2009. However, it is orally submitted that, in all likelihood, resitement of the retail outlet may be completed by the end of June 2008.
Taking into consideration the facts and circumstances of the case and the law laid down by the Hon''ble Supreme Court in the above cited judgments, considering that the public utility service petrol pump is being operated from the suit land, the applications for extension of time for vacating the suit land deserve to be allowed. Accordingly, the applications are allowed and six month''s time allowed to the applicant/judgment debtor vide judgment & decree dated 7th August 2007 passed in Second Appeal No. 16/06, is further extended up to 31st August 2008. The applicants to file an undertaking in that regard within a period of two weeks from today. If the undertaking is not filed, the period extended-shall not be operative.