Pichammal and Unnamalai vs Annamalai and Unnamalai Ammal

M. Venugopal, J.—Heard the counsel for petitioners.

The revision petitioners herein are the plaintiffs in the Trial Court in O.S. No. 440/1998 on the file of III Additional District Munsif at

Kallakurichi. The suit was dismissed for default on 31.10.2002 for non-appearance of both the plaintiffs. In I.A. No. 390/2003 an application u/s

5 of the Limitation Act for condonation of delay of 28 days in filing Order 9 Rule 9 application a conditional order was passed on 21.2.2003 as to

the payment of costs and the same was ordered to be paid on or before 27.2.2003 and the matter when called on 28.2.2003 the application was

closed for non-payment of costs.

It is represented that the cost was not paid and I.A. No. 883/2003 was filed by the petitioners herein praying for adjournment of one week time

for payment of costs. The said I.A. No. 883/2003 was dismissed by the Trial Court on the ground that the Court has no power to extend the time

when the Court has become functus officio as per decision rendered in D. Raju v. N. Ramalingam reported in 2001 (1) TNLJ 291. In the said

decision it is inter-alia observed by the Honourable High Court as under:

In my view, the Court has the power u/s 148 of the Code to extend the time only if the Court has not become functus officio. In the instant case,

the learned District Munsif had already dismissed the petition when the application for extension of time was filed and hence, the Court became

functus officio and the power u/s 148 of the CPC is not available to the learned District Munsif to extend the time...etc.

The learned Counsel for the revision petitioners relied on Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), at special

page 372 wherein at para 41 the Honourable Supreme Court has held as follows:

41.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. Whether the court has no inherent power to extend the time beyond 30 days is the question. We

have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the court to pass orders as may be necessary for

the ends of justice or to prevent abuse of process of the court. The regid operation of the section would lead to absurdity. Section 151 has,

therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within

30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the

provisions of the Limitation Act which cannot be extended either u/s 148 or Section 151. We are dealing with a case where the time is fixed or

granted by the court for performance of an act prescribed or allowed by the court.

Therefore, it is clear that the extension of time for payment of costs beyond the maximum period of 30 days can be permitted by the Court if the

act was not performed within 30 days for the reasons beyond the control of the party.

In Nachammal Vs. Lavangammal, at special page 424 it is observed as follows:

23.In the present case, the Trial Court simply dismissed the application, stating that it had no power. But, we have concluded that the Court has

got power to entertain an application under Sections 148 and 151, C.P.C., to consider the merits of the matter for condoning the delay or for

extending time. Admittedly, in this case, the application has been filed before the Trial Court under Sections 148 and 151, C.P.C.

I.A. No. 883/2003 u/s 148 C.P.C., praying for extension of time in regard to the payment of costs was filed before the Trial Court on

28.2.2003 by the revision petitioners after the dead line for payment of costs expired on 27.2.2003 in I.A. No. 390/2003.

The learned Junior counsel for the respondents prays time for arguing the matter. Since the matter is covered by the decision of the Honourable

Supreme Court reported in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), and also as per decision of our High Court

reported in Nachammal Vs. Lavangammal, this Court is not inclined to grant time to the learned Counsel for the respondents.

In view of the decision of Honourable Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), at special

page 372 and also as per decision Nachammal Vs. Lavangammal, this Court is of the view that the principles laid down in these decisions squarely

apply to the facts of the present case on hand and that trial Court has power to extend time for payment by costs and in that view of the matter, the

conclusion arrived at by the Trial Court in I.A. No. 883/2003 that it has become functus officio and has no power to extend the time etc., cannot

be sustained in the eye of law and in that perspective the dismissal of I.A. No. 390/2003 by the trial Court is not valid in law.

From the foregoing discussions and in furtherance of substantial cause this Court passes the following order interfering in revision jurisdiction:

(i) The order passed by the learned III Additional District Munsif, Kallakurichi in I.A. No. 390/2003 dated 28.2.2003 is set aside.

(ii) The matter is remitted back to Trial Court for reconsideration in accordance with law. The learned III Additional District Munif, Kallakurichi is

directed to restore the I.A. No. 390/2003 to file and to dispose of the same in the manner known to law as expeditiously as possible after giving

opportunity to both the parties.

Consequently, the Civil Revision Petition is allowed without costs.