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Judgment
R.N. Biswal, J.—This writ petition has been directed against the order dated 11.1.2010 passed by learned Civil Judge (Jr. Division) Bhubaneswar in I.A. No. 457/2009 directing the I.I.C., Chandrasekharpur Police Station to implement its order dated 13.10.2009 passed in I.A. No. 407/2009.
The fact giving rise to filing of the writ petition in short is that opp.parties Nos.1 and 2, who are husband and wife, took a house on rent from the Petitioners in the first week of June, 2007. According to the opp.parties, the monthly rent was fixed at Rs.2500/- per month with an understanding that it would be enhanced '' 10% per annum, while the Petitioners, who are father and son claim that the initial rent was fixed at Rs.5000/- which was enhanced to Rs.6000/- with effect from June, 2008. In the year 2009, it was fixed at Rs.6, 500/-per month. Besides the rent, opp.party No. 2 agreed to pay the water and electricity charges as per his consumption. As there was some dispute between the parties, opp.party No. 2 filed C.S. No. 303/2009 before the Civil Judge (Junior Division), Bhubaneswar for permanent injunction in respect of the tenanted premises. He also filed a petition under Order 39 Rule 1 and 2 of CPC for grant of interim injunction, which was registered as I.A. No. 407/2009, whereas Petitioners filed I.A. No. 490 of 2009 with prayer to direct opp.party No. 2 to pay the arrear as well as current rent and water charges as per his consumption.''
I.A. Nos. 407/2009 and 490/2009 were heard together by the Court below and a common order was passed thereon. Both the I.As were allowed in part. The Petitioners were restrained from evicting the opp.parties from the suit premises or disconnecting the supply of electricity and water thereto until the latter are evicted therefrom in due process of law, subject to payment of arrear monthly rent for the period from June 2007 to May, 2008 '' Rs.2500/-, from June, 2008 to May, 2009 '' Rs.2750 and from June, 2009 to October 2009 '' Rs.3025/- to the Petitioner No. 1 by 26.10.2009. Opp.party No. 2 was further directed to pay the current rent '' Rs.3025/- per month with an yearly enhancement of 10% payable from the month of November, 2009 by the first date of every succeeding English calendar month to Petitioner No. 1 and in the event he refuses to accept it to deposit the same in the first week of such succeeding month in the Court below in shape of bank draft payable in his favour (Petitioner No. 1) at Bhubaneswar, besides paying other ancillary dues like electricity and water charges in time.
Opp.parties filed a petition u/s 151 of CPC seeking for a direction to the local police to render assistance for implementation of the order of injunction dated 13.10.2009 passed in I.A. No. 407/ 2009 which was registered as I.A. No. 456/2009. According to the opp.parties, they left the tenanted premises on 14.10.2009 on a vacation trip and on return in the night of 6.12.2009 were shocked to see that all their belongings had been missing. In this context, the plea of the Petitioners is that opp.parties left the suit premises of their own without paying the arrear rent as directed in I.A. No. 407/2009. Opp.party No. 1 left the Indian Territory and never came with opp.party No. 2 to the suit house. So, the house in question was let out to a new tenant through an agreement dated 20.11.2009 and that since then the opp.parties are no more in occupation of the same.
According to the opp.parties, Petitioner No. 2 threatened them with dire consequences unless they vacate the suit premises and did not allow them to enter inside the suit house. So, opp.parties 1 and 2 filed I.A. No. 456/2009 u/s 151 of CPC seeking for a direction to the local police to render assistance for implementation of the order of injunction passed on 13.10.2009 in I.A. No. 407 of 2009 as stated earlier. After hearing learned Counsel for the parties, learned Civil Judge (Junior Division) Bhubaneswar allowed the prayer vide order dated 11.1.2010 and directed the I.I.C. of Chandrasekhar Police Station'' to take necessary steps as per law to ensure implementation of the order dated 13.10.2009 passed in I.A. No. 407/2009.
Being aggrieved with the said order the opp.parties in I.A. No. 456/2009 have preferred this writ petition.
Learned pounsel appearing for the Petitioners submitted that the interim order of injunction had been granted, subject to payment of the arrear house rent on or before 26.10.2009 but the opp.parties failed to deposit the same in time. There was also no prayer, either u/s 148 or 151 of CPC to extend time for depositing the said amount. So, no interim injunction order was alive by the time the order granting police protection was passed. He further submitted that as per the amended provision contained u/s 148 of CPC where any period is fixed by the Court for doing of any act, it may, in its discretion from time to time enlarge the period not exceeding 30 days in total, even though the period originally fixed for granting time may have expired. In the present case, the interim injunction order was granted on 13.10.2009 subject to payment of the arrear house rent on or before 26.10.2009. The opp.parties tendered a draft towards the arrear house rent on 8.12.2009 - one month twelve days after the due date. Even if the same was accepted without protest by the Petitioners'' counsel, still then, it cannot be said that the Petitioners waived their right which had accrued in their favour for non-depositing the arrear house rent in question within the time fixed. Furthermore, learned Counsel for the Petitioners submitted that there was an agreement between the Petitioners and Anr. person to give the house in question on rent. If, in the meantime, the new tenant has already been inducted to the said house, virtually the impugned order would amount to a direction for recovery of possession of the house from him behind his back. Under such premises, he urged to allow the writ petition.
On the other hand, learned Counsel appearing for the opp.parties contended that the provision u/s 148 of CPC is directory and not mandatory in nature. The Court in an appropriate case may extend the time fixed for compliance of an order passed earlier by more than 30 days. In support of his submission, he relied on several judgments, all of which were decided prior to the amendment of Section 148 of CPC He also relied on a decision Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , which relates to a dispute, where the cause of action arose after the amendment of Section 148 of CPC came into force. Learned counsel for the opp.parties further submitted that in the instant case, when the draft towards the arrear house rent was accepted by the Petitioners through their counsel without any objection, it implied that they waived their right which had accrued in their favour because of not tendering the arrear house rent in time. With regard to power of the civil Court to extend police help for immediate relief to the parties by resorting to Section 151 of CPC learned Counsel for the opp.parties relied on the decisions Sujit Pal Vs. Prabir Kumar Sun and Others, and Subal Kumar Dey v. Purna Chandra Giri and Ors. 1989 (I) OLR 398.
Section 148 of CPC empowers the Court to extend the time fixed by it earlier to do an act. There was no restriction of time till the said Section was amended in the year, 1999 which came into force with effect from 1.7.2002. As per the amended provision, the Court can extend time in different spells up to 30 days in toto. The purpose of amendment in limiting the maximum period to 30 days is to avoid unnecessary delay. As stated earlier, learned Counsel for the Petitioners submitted that this period of 30 days cannot be extended in any circumstances. Procedural law is hand maid of justice. Its purpose is to advance justice and not to thwart it. By invoking Section 151 of Code of Civil Procedure, the period of 30 days can be extended where the act could not be performed within the said period for reasons beyond the control of party, as held in the decision Salem Advocate Bar Association (supra), which reads as follows :
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 Court. The rigid operation of the Section would lead to absurdity. Section 151 has, therefore to be allowed to fully operate. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for the reasons beyond the control of the party.
If a party files a petition u/s 151 of CPC showing that he could not comply the order within the extended period of 30 days for reasons beyond his control, time can be extended even after expiry of the said period of 30 days. In the present case, as stated earlier neither any petition u/s 151 nor 148 of CPC was filed. The interim injunction was granted on 13.10.2009 subject to payment of arrear house rent on or before 26.10.2009. As per the case of the opp.parties, they left the tenanted premises on 14.10.2009 on a vacation trip and returned on 6.12.2009. In other words they left the tenanted premises for a vacation trip after knowing about the interim injunction order. They could have paid the arrear house rent and gone for the vacation trip thereafter. So, it cannot be said that opp.parties could not comply the order under the circumstances beyond their control. Only because the Petitioners accepted the arrear house rent through their advocate beyond more than 30 days of the date fixed, it cannot be said that they waived their right, which accrued in their favour because of efflux of time. As stated earlier, the order of interim injunction was passed in favour of the opp.parties, subject to payment of arrear house rent by 26.10.2009. When they did not make the payment within the time, the conditional order ceased. By the time the impugned order was passed, the interim injunction was no more in force. So, there was no question of implementing any order through police and as such the decisions Sujit Pal and Subal Kumar Dey (supra) cited on behalf of the opp.parties would not be of any help to them. If the impugned order is allowed to stand, it would lead to miscarriage of justice.
Accordingly, the writ petition is allowed and the order dated 11.1.2010 passed by learned Civil Judge (Junior Division), Bhubaneswar in I.A. No. 457 of 2009 directing the I.I.C. Chandrasekharpur Police Station to implement its order dated 13.10.2009 passed in I.A. No. 407 of 2009 is hereby set-aside. However, the trial Court is directed to dispose of C.S. No. 303 of 2009 expeditiously, preferably within a period of four months hence.
No cost.